Re: RES: What makes software copyrightable anyway?
On 5/19/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > > This "scope of license" construction does not involve any fine
> > > judgments about whether the licensee's return performance is up to
> > > snuff.
> >
> > If the GPL is an offer of contract, the only remedy explicitly included
> > in the agreement is termination of all rights. Which means that
> > the licensee's return performance is very much at issue.
>
> At issue in a breach of contract claim. Not in a claim of copyright
> infringement -- not unless and until it is proven that the contract
> was justly terminated for material breach.
Sure, someone who isn't violating the GPL isn't a problem.
> > > You don't have to believe me on this, you can
> > > read SOS v. Payday yourself, and see how it was applied in Sun v.
> > > Microsoft.
> >
> > That did not involve the GPL. You have not established the
> > parallel.
>
> Do you not understand the distinction between issues of fact and of
> law? What is so hard about applying the concept of "scope of
> license", as articulated in those cases, to find the portions of the
> GPL (once construed in some particular way by a court of fact) that
> constitute "scope of license"?
Ultimately, scope of license wasn't the issue. Expectation of
continuing harm was.
Quite literally: the court didn't address the scope of
license issue.
> > Why not just use a phrase that indicates the particular flavor of
> > meaning you're after. For example "The copyright grant licensed
> > under the GPL"?
> >
> > You don't have to redefine "GPL" to accomplish what you seem to
> > want to accomplish.
>
> Sorry, Raul, but using the word "license" in the title doesn't make
> all of its terms and conditions suddenly become part of the "scope of
> license" analysis. That's the argument that I was trying to preempt,
> to save wear and tear on everyone's in-boxes (or killfiles, as the
> case may be). Oh well; it was worth a try, anyway.
You do not need to redefine "GPL to accomplish what you seem to
want to accomplish.
> > > > If I read you right, you think that my citation of this case involving
> > > > colorization was presented as something more than an example of a case
> > > > based on something other than contract law.
> > >
> > > You keep asserting that "the GPL is not a contract", apparently
> > > meaning that principles of contract law in a given jurisdiction
> > > shouldn't be used to construe its legal meaning.
> >
> > Actually, I'm saying that in recognition that contract law is applicable.
> >
> > The contract is going to include the GPL plus whatever additional
> > terms are supplied by law.
>
> Did I read this right? Are you actually acknowledging that the GPL is
> a creature of contract law? If so, I am in complete agreement with
> this last statement, as long as you recognize that (under US law,
> anyway) ambiguities in the text of the GPL must be construed against
> the offeror in the absence of clear evidence that the licensee read
> them in the offeror's favor at the time that the contract was
> accepted.
I'm not really interested in classifying the GPL as a creature.
I do agree that copyright cases in the U.S. are routinely analyzed
using contract law.
I'm not going to touch your "ambiguity" argument, because I think
you have some severe misunderstandings about what constitutes
a legally relevant ambiguity. However, to avoid argument, I'll
agree that there are cases where ambiguity is construed in
favor of the licensee.
> > So, given your concluding statement there, what is the "misunderstanding"
> > which you claim I have?
>
> "Droits morals de l'auteur" have nothing whatsoever to do with
> license, and you can't contract them away (in a droit d'auteur
> jurisdiction) no matter how hard you try. An opinion arrived at via
> droits morals doesn't weaken the argument that all licenses are
> governed by contract law.
That's exactly the form legal logic would take when a case is decided
on some principle other than contract law.
Anyways, if you're willing to agree that contract law is not the only
relevant issue in deciding a case, I'm happy.
> > My reading is that the court said that other remedies were available
> > (other than termination of license).
> >
> > So how does this apply in the context of the GPL?
>
> The court said that remedies under a theory of copyright infringement
> were _not_ available because it had not been demonstrated that
> Microsoft's conduct was not within the scope of license claimed under
> the TLDA.
Note that this is not equivalent to saying that Microsoft's conduct was
within that scope.
> > http://java.sun.com/lawsuit/012400motioncal.html
...
> > Or is there some later court decision which takes
> > precedence?
>
> That motion appealed exclusively to, and was granted entirely based
> on, a theory of unfair competition under California state law, which
> had nothing whatsoever to do with copyright infringement. I will ask
> you again, do you bother to read a court decision before citing it as
> evidence in support of your arguments?
I think we can agree that Microsoft was violating the license.
I think we can agree that the district court did not address
the issue of whether or not the activities which constituted
the breach of contract was within the scope of Microsoft's license.
I think we can agree that Sun was granted an injunction simply
because Microsoft was likely to continue violating the contract.
Do we agree so far?
Now let's consider the GPL. Let's imagine some entity B
is in breach of contract with some entity C where the
agreement in question is the GPL. C made some work
available under the GPL to B, and B breaches the terms
of the contract.
Let's say that this is established in court, so our case
is parallel to the Sun v. Microsoft case.
Is this what you're wanting to talk about?
In the context of the GPL, the remedy contained in the
agreement is that the license terminates.
So, in the context of the GPL -- unless you can show that
some other remedy applies -- breach of contract means
that B is infringing copyright.
But maybe I'm wrong -- how could that be?
Maybe the court has tossed out that remedy -- unless
some other remedy is provided by law, there is
no contract at this point. This would mean that the
case must proceed using some other principles
than contract law.
We're also left with the possibility that by law some other
remedy is a salient part of the contract. I'll be interested
if you find something significant along this line.
One other possibility remains: B is guilty of copyright infringement.
> > > contract. So there is little or no prospect of any "GPL infringement"
> > > lawsuit in which the plaintiff doesn't have to prove material breach
> > > of contract under the most unfavorable construction the defendant can
> > > justify.
> >
> > Unless you are meaning this as a tautology, (which isn't very interesting)
> > I think your concluding sentence here is overly optimistic in favor of the
> > potential defendant.
>
> It is a tautology, in a way, since it follows immediately from a few
> simple facts about the scope of license offered in the GPL. It also
> deserves an asterisk with regard to authorization to publish, as in
> the WASTE situation, and another asterisk with regard to statutory
> termination provisions and all that. Otherwise, I believe that it is
> true as it stands; I could, of course be surprised. IANAL, etc.
For someone in breach of contract, the scope of license seems to be:
no license has been granted. That seems to me to be a rather narrow
scope.
Of course, you acknowledged that in your statement (thus my
question about whether you meant it as a tautology).
But basically, you've come up with a different way to describe
what we've been calling "violating the GPL".
--
Raul
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