Revocable GPL (Groklaw)

Revocable GPL (Groklaw)

Posted Jan 31, 2008 3:42 UTC (Thu) by rahvin (subscriber, #16953)
In reply to: Revocable GPL (Groklaw) by ncm
Parent article: The Non-Revocable GPL (Groklaw)

Everything in the field of law is speculation. There are quite simply no guarantees in any court. Judges and juries can misread law, laws can be written such that the meaning is lost. Until an issue is tested at the level of the supreme court (with a very clear ruling) nothing is certain, and even after a ruling or a vague ruling at the Supreme there can be another case that throws the previous ruling out the door. No lawyer worth his salt would even try to make an assertion other than "I don't know" in anything but the most mundane and common portion of case law.

The problem with your "theory" is it's highly unlikely for someone to be able to revoke the issuing of new licenses under the GPL. The license has specific terms, that are NOT in doubt, that give the authority to any licensor the ability to sub-license and create new licenses on any copies made.

1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.

You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

...

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

...

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

The theory you want to argue allows the author to go in and cancel section 6 of the GPLv2, which wipes out section 1, 4 and 2B and probably more. This is NOT supported in case law and if it were true the entire software industry would already be gone as companies revoked portions of licenses and then demanded new licensing fees.

As I said at it's heart, regardless of how much the FSF wants to avoid it, the GPL includes with it's license an implied contract. A contract that ascertains rights to the licensee and licensor that are not allowed without a license under US copyright law. This implied contract provides promises that the courts view as consideration to each party, a breach of the license would also breach the implied contract and anyone that had a license and had relied on those promises in the license could seek financial damages or a waiver of the owners claims. A term referred to by the courts of promissory estoppal is the recognized term to describe an entity's reliance on those promises being used as justification to legally prevent the owners actions.

The GPL specifically grants the rights (not IMPLIED, it's explicitly granted) to every licensee the right to not only issue new licenses automatically with every copy, but to copy, modify, merge, divide and sub-license the original code. By taking what PJ said out of context you have made this wild claim that the author can somehow decide to issue no new licenses on the existing code (when in fact her statement said the author can refuse to make any new revisions of the code GPL and can license the code to anyone else under any other license). The GPL specifically prevents the author from being able to stop distribution of the existing code because it grants the right to issue new licenses to any licensee of the code (See Section 6). To allow what you claim allows the author to cancel a term of the license, which is NOT supported in case law nor the law. There is no such right given to copyright holders, the only exception given is the right to cancel all licenses at 35-40 years. Which has yet to be tested in the supreme.

Yes in our court system anything is possible, yes your theory could happen some day in some court. But any such ruling could have no chance of standing for the damage it would do to the system would be immeasurable. The entire copyright industry would be thrown a huge curveball as any copyright holder could then cancel terms of any license without consequence. And if you can cancel individual terms, you can cancel the whole license. Just think, movie companies could revoke your right to watch the movie after 8pm or while eating popcorn. Music companies could decide that music played in stores has to be accompanied by a message every song that talks about how illegal copying music is.

You can argue your wild theory all you want I guess, but the reason Eben didn't respond to your question is because quite frankly your question is stupid. Heck keep talking about ponies, and how everyone is wrong and ignorant, but you of course, along with your wild theory, maybe you can convince some more people that it's possible to clip out license terms and that everyone should stop developing GPL software as a result.

Cheerio! Have a great day.

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Come on, back to basics...

Carlill v. Carbolic Smoke Ball. Co.

The Carbolic Smoke  Ball Co. had no idea Carlill had accepted their offer. In fact they didn't
even realise (or so they told the court) that they'd made an offer at all. She showed up and
demanded the money, and they sent her away so she sued them. And she won.

The court saw no reason in principle to nullify contracts which one party is unaware of until
the terms are fulfilled. Nor to disregard contractual offers made to the general public (in
this case in the form of a newspaper advert).

Just because when we think of a contract we imagine a signed piece of paper, doesn't mean the
law sees it that way. All that's needed is a legitimate offer (including "consideration" of
some sort) and acceptance of that offer by one or more other parties. The situation in which
one party is oblivious to the contract is now commonplace, and even situations in which
/neither/ party is actively aware of a contract formed between them can occur. Only when
something goes wrong do any /people/ need to be informed of the situation at all, since
usually the contract is mutually beneficial and everyone is content.

This may well be a US-vs-English law difference, but my understanding is 
that `contracts which one party is unaware of' is meaningless in English 
law (I can't even figure out what on earth it might mean in everyday 
English).

If one party offers something to another one in a newspaper advert, that 
other party presumably must communicate with the first one in order to get 
whatever-it-is. As soon as that communication takes place, you'd have an 
implied contract in English law. (I think. The fact that both parties are 
aware of the contract and that it would apply to the other party *might* 
be sufficient. IANAL.)

> This may well be a US-vs-English law difference, but my understanding is 
that `contracts which one party is unaware of' is meaningless in English 
law (I can't even figure out what on earth it might mean in everyday 
English).

This case defined the concept of a unilateral offer. The issue was that although Carbolic
claimed to have been unaware of having made an offer (of compensation for the smoke balls
having proved inefficiacious), in legal terms they met every qualification of having done so
(precision of offered consideration - £1000 placed in a bank account for the purpose;
precision of audience - the general public; specification of the means of acceptance - use of
the smoke balls). And English law does presume competence. Having thus met the conditions of
acceptance, Mrs Carlill was entitled to succeed in her claim against them.

Advertisers have been rather more careful to state and ensure that they are in no way making
offers since then.

Hence the regular apperance of offers on cereal packets consisting of 
tickets with an explicitly-stated value of 0.000001p and so on.

I think there's also the issue of 'consideration' - a contract must be a two way deal.

In essence, (1) rahvin knows better than any lawyer, (2) it would be very inconvenient if he
was wrong, (3) popcorn!; *therefore* there's nothing to worry about.

That's some fine reasoning.  

Isn't that precisely your own reasoning, though? (1) ncm knows better than the lawyers who
drew up the document in the first place; (2) it would be very inconvenient if he were right;
(3) OMFGBBQZ!!!!

The lawyers who drew up the document in the first place don't claim to know either.  Not
knowing is itself the problem.