Re: RES: What makes software copyrightable anyway?
On 5/19/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> On 5/19/05, Raul Miller <moth.debian@gmail.com> wrote:
> > Quite literally: the court didn't address the scope of
> > license issue.
>
> Bullshit. Decision at http://java.sun.com/lawsuit/050800ruling.html ,
> which I already pointed out to you and which is referred to in the
> summary of the history of the litigation at the beginning of the case
> you cited.
Ok, that's a valid point. I was not looking at that.
However, I believe my original point stands: the contract
has all sorts of limitations on when copyright termination
can occur -- remedies other than license termination.
In many cases these remedies are required to be use
instead of license termination.
For copyright termination to occur under that license, the
contract breach has to be in section 2.6, Sun has to
warn Microsoft about the breach, a year has to pass
with the issue not resolved. And, even then, any
published products retain their copyright -- even
if they're published up to six months after copyright
has been terminated.
This doesn't sound much like the sort of issue which
is relevant to the GPL.
> > You do not need to redefine "GPL to accomplish what you seem to
> > want to accomplish.
>
> What do you think you mean by this?
In general terms: that you do not need to make statements of the
form "The GPL is FOO" to assert that FOO is relevant to the GPL.
I hesitate to be more specific because that would require I presume
I know what your point is.
> > 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.
>
> Not "there are cases". It's an ironclad principle of law in common
> law jurisdictions that ambiguities in contracts are to be construed
> against the offeror, in the absence of evidence through oral
> discussions, conduct, etc. that the offeree intended to be bound by
> the offeror's construction.
But the ambiguities have to be valid ambiguities.
That's where we seem to differ on this issue.
> > > "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.
>
> Straw man. No one is buying.
Eh... ok. I was remembering this:
"Existing case law with respect to copyright _licenses_ is
always, always, always based on contract law (in the US,
anyway)."
And was thinking you meant that there could never be any
other kind of case.
> No, but the district court's subsequent ruling did say this; and even
> if it hadn't, the legal principle that analysis of scope of license
> must precede any ruling on copyright infringement claims would still
> hold.
But this seems rather irrelevant in the case of the GPL.
Either there's a breach -- in which case there is nothing within
the scope of the license (which is the default state under
copyright law) -- or there hasn't been, in which case the
GPL has granted you some rights, and there's little or
no problem.
> > I think we can agree that Microsoft was violating the license.
>
> I have seen no ruling to that effect that was not vacated by a higher
> court. Microsoft was enjoined under a state law regarding unfair
> competition -- a tort -- for which the license terms were part of the
> evidence. Do you have any indication that Sun succeeded in obtaining
> any judgment on a breach of contract theory?
I'm not sure I understand you here. As I read it, the injunction was
based in part on the belief that Microsoft would continue breaching
the contract. Are you saying that this could be the case when
Microsoft had never breached the contract?
Or are you referring to this being a preliminary injunction?
That nothing was actually proven -- that it was only shown that
the case was likely to succeed? This seems standard for
preliminary injunctions.
Anyways, I'll quote from what appears to be the current
injunction -- as far as I know, this was not vacated?
"Preliminarily, Sun has established a reasonable likelihood
of success in demonstrating that Microsoft's distribution of
non-compliant Java technology violates the compatibility
provisions of the TLDA. See Sun, 21 F. Supp. 2d at 1119-22,
1122-25; Sun, 188 F.3d at 1120 (holding that substantial
evidence demonstrates that Microsoft violated the TLDA)."
http://java.sun.com/lawsuit/012400motioncal.html
> > 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.
>
> Wrong twice over; see above.
Ok, you're right -- my mistake. The court said that microsoft
had breached the contract, but that the license terms
still held.
> > I think we can agree that Sun was granted an injunction simply
> > because Microsoft was likely to continue violating the contract.
>
> Still wrong. The court ruled that Microsoft was likely to continue
> engaging in unfair competitive practices, which is part of the support
> needed in order to justify a preliminary injunction under the
> applicable state (tort) law.
Ok, you're right -- there were reasons in addition to the likelihood
that they would continue to violate the contract.
> > 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.
>
> That would not, in fact, be parallel to the facts of Sun v. Microsoft
> as I understand them. I haven't yet seen evidence that Sun succeeded
> in a breach-of-contract claim -- although I haven't read all of the
> district court opinions in that saga closely.
I'd be interested in hearing what you think would be parallel.
> > Is this what you're wanting to talk about?
>
> Not principally; but I'll go there with you.
Ok, well... I'm back to "I don't know what your point is."
> > In the context of the GPL, the remedy contained in the
> > agreement is that the license terminates.
>
> Funny how that's not how it worked in Progress Software v. MySQL, isn't it?
I think that's because MySQL didn't properly charge
that Progress Software had violated the GPL.
I certainly didn't see any discussion by the judge of
the issues which I would have thought were pertinent.
This implies to me that those issues weren't raised.
Or, if they were raised, that they weren't backed up
with facts.
> > 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.
>
> No, breach of contract means breach of contract. If the remedy
> granted by the court includes recognition of the offeror's grounds for
> contract termination as of a certain date -- applying statutory notice
> requirements and all that -- then continued copying, etc. beyond that
> date is copyright infringement. The remedies for that are specified
> by statute and the GPL's text has nothing to do with them.
As I understand it, the only remedy which appears in the
GPL is termination. Do you have some reason to believe
different?
If not, what does your "nothing to do with them" comment
mean?
I mean... I can imagine that the judge can construe some
other remedies -- I can imagine that the judge could order
the licensee to comply with the terms of the GPL, for example,
thus removing the breach. But, I don't see this as having
nothing to do with the remedies specified in the GPL -- I
see this as being motivated by those remedies.
> > 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.
>
> Nope. Unless and until the contract is ruled to be terminated, the
> breach-of-contract part of the case proceeds under contract law using
> the fully construed contract, including whatever remedies for material
> breach and/or standards of cure that the applicable law and/or
> principles of equity may suggest.
Can you be more specific?
After all, I'm listing options here. You seem to want
to respond to each option with some text indicating that
there are other options, and you're right about that, but
I'm trying to construct a complete list.
> > 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.
>
> Not unless B has acted outside the scope of the license or the
> contract is ruled to have been invalid or terminated according to
> contract law and the facts of the case.
Isn't that what I said?
In other words, are you objecting purely to my choice of
words? Because it looks to me like you're offering
the same basic structure with more formal phrasing.
> > > 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.
>
> Bzzzt. That's not what "scope of license" means.
It is when there is no license.
> > 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".
>
> A very different way to describe the procedure of analysis, yes; and
> hence one which draws a very different picture of what is and isn't a
> "GPL violation".
If I didn't have some severe problems with some of the more
concrete statements you've made, I'd love to go into this.
At the moment... I'd prefer to defer any discussion of this view
of things until after we've reached agreement on two more
basic issues:
[1] The whether derivative works and collective works are disjoint
or merely different.
[2] Whether the GPL is a valid license for any software where
section 0 of the GPL does not apply.
We may have some other fundamental disagreements but
these are the two that trouble me the most.
Thanks,
--
Raul
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