Getting grubby with ZFS - GPLv2 or later legality [LWN.net]

Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 10, 2010 4:36 UTC (Fri) by giraffedata (subscriber, #1954)
In reply to: Getting grubby with ZFS by ccurtis
Parent article: Getting grubby with ZFS

it seems to me that what you're implying would contradict ex post facto and "grandfathering" concepts.

Those legal doctrines don't apply because they are about criminal law. A government can't make something illegal and then punish people who have already done it. A more fuzzy version of it also says a government cannot change the meaning of an existing contract unless the government makes it really clear it means to do so. But FSF isn't a government, so it doesn't apply.

What we should be thinking of is the rule that a contract isn't enforceable if it's too speculative at the time it is executed -- i.e. the parties couldn't reasonably predict its effect. A contract can certainly require actions that are to be determined later. For example, "tenant agrees to pay for all glass breakage," even though neither party knows what breakage that will be. Or actions dependent on someone else: "tenant shall replace smoke alarm batteries," even though the batteries have to be supplied by someone else and no one knows on what terms he will offer them at the time the tenant needs to acquire one. But you can go too far. "Tenant promises to pay any bill Landlord sends him" is a promise a court would not enforce.

I don't know how enforceable "GPL v2 or later" would be (and we aren't talking about a true contract here, but a conditional license), but assuming GPL v4 is in the same spirit as v2, I can see it being sufficiently predictable that the condition would be enforceable.

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Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 12, 2010 18:47 UTC (Sun) by ccurtis (guest, #49713) [Link]

it seems to me that what you're implying would contradict ex post facto and "grandfathering" concepts.
Those legal doctrines don't apply because they are about criminal law.

I intentionally did not use the term "law" in my response. At the risk of veering off-topic, and fully admitting my non-lawyer status, and acknowledging that my political philosophy is not currently in vogue, I want to say that I think you're mistaken.

From the U.S. declaration of independence: "WE hold these Truths to be self-evident ... - That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, ..." My point here being that all law, especially that concerning government, is derived from contract law. Government itself is a contract among People.

Now, a contract is simply an agreement. A license is an offer of a "right to use," generally being bound by some terms. These terms form a contract (agreement). The terms of a license may change, at which point the licensee may opt not to agree to those changes, thus losing their license; but they cannot be held to new terms. Saying "licensee is responsible for all environmental damage they cause" is different from "licensee agrees to accept any new terms we wish to impose", whether those terms are "in the same spirit" or not.

The GPL is a somewhat strange beast in that the thing being licensed essentially owns itself. If the FSF (or any individual or organization) owns copyright over the entire body of software it's a bit clearer who the licensee and licensor are, but things get a little strange when you get your license to use from (e.g.) RedHat, itself a GPL licensee.

So all that to say, we should look at the actual text for this "GPLv2 or later", term:

"This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version."

I (Oracle), say "you can redistribute it" as long as you agree to GPL2 - or - you agree to GPL something later. How you choose to distribute it (GPLvX) does not affect how I Oracle (née Sun) have done so, which is GPLv2. That the GPLv2 allows you to choose any later version does not negate the fact that how I have distributed it is verbatim GPLv2.

Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 13, 2010 9:16 UTC (Mon) by giraffedata (subscriber, #1954) [Link]

You don't say where you think I'm mistaken. Are you saying you believe the legal doctrines of ex post facto and grandfathering apply to the issue of a "GPLv2 or later" clause in a copyright license?

I intentionally did not use the term "law" in my response.

The only place I have ever seen the terms "ex post facto" and "grandfathering" used is with respect to law, so if you meant them some other way, you're right -- my response is completely inapplicable and in fact I can't respond.

I accept your view of all law as a contract. In that case, the criminal punishment part of that contract includes ex post facto restrictions -- we've agreed not to punish each other for things we did before we said it was wrong. But I don't know what that view of law has to do with applying those concepts to copyright.

A license is an offer of a "right to use," generally being bound by some terms. These terms form a contract (agreement).

You're confusing licenses and contracts too much. They really are distinct. First of all, replace "offer" with "grant". A contract is an offer and acceptance, but a license is just a grant. It's a one-way thing and there is no agreement involved. It is binding only on the licensor.

Some experts believe that in the matter of a GPL distribution of software, there is a contract (and some don't). But even they don't confuse the contract with the license. The license is something that one of the parties to the contract gives the other, as one term of the contract.

The terms of a license may change, at which point the licensee may opt not to agree to those changes, thus losing their license;

It doesn't work that way. Once a license is granted, it's granted. The permissions and conditions in it can't change. Of course, they can have a lot of variability built into them, like "this permission exists until licensor changes his mind." But they don't change.

And my point was that if a condition is too variable a court may find it invalid and read it out of the license, but the court will accept a lot of variability. (and again, I'm applying contract principles because I don't really know copyright law, but I know much of contract law is applied to copyright licenses).

I (Oracle), say "you can redistribute it" as long as you agree to GPL2

Again, you don't agree to GPL2. You actually perform the conditions of it, and then you can redistribute.

Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 17, 2010 22:45 UTC (Fri) by ccurtis (guest, #49713) [Link]

Are you saying you believe the legal doctrines of ex post facto and grandfathering apply to the issue of a "GPLv2 or later" clause in a copyright license?

In effect, yes; insomuch that it, as a concept, seems a necessary prerequisite of a "meeting of the minds," applicable to any contract. Surely we agree that a contract can't be modified by a single party without the consent of the other.

[...] but a license is just a grant. [...] It is binding only on the licensor.

I assume you mean licensee. If not, I am simply incredibly confused about this whole law thing altogether.

The license is something that one of the parties to the contract gives the other, as one term of the contract.

Whether a license is granted on the terms of a contract, or whether one is bound to license terms by performing its conditions, it seems to me that there exists some form of contract, either expressed or implied.

My terminology may be all over the map and I may very confused about what law actually is, but it seems unfathomable to me that the law would allow a Heisenberg-esqe agreement where the supplier of a piece of software is bound to unspecified conditions based on the actions of the licensee. (Specifically in the sense that a licensee says, "Ooh, look at this or later clause. I'll take it under the 'vN' terms; now allow me free access to all your patents.")

The terms of a license may change, [...]
It doesn't work that way.[...]

True. I was thinking that licenses tend not to be granted in perpetuity. Software generally is, but licenses to other "IP" tend to be term-limited (such as a license to use a brand), with periodic renewal. At the point of renewal, of course, terms can change...

Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 18, 2010 2:28 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

Are you saying you believe the legal doctrines of ex post facto and grandfathering apply to the issue of a "GPLv2 or later" clause in a copyright license?
In effect, yes; insomuch that it, as a concept, seems a necessary prerequisite of a "meeting of the minds," applicable to any contract. Surely we agree that a contract can't be modified by a single party without the consent of the other.

Then I think what you're really looking at is the doctrines behind ex post facto and grandfathering. I like to think all legal doctrines are based on a consistent set of underlying principles, so I have no problem saying the underpinnings of ex post facto also stop people from unilaterally defining contract terms after they're written. But as the terms are normally used, "ex post facto" and "grandfathering" refer to the effect of those principles in other areas (to wit, criminal law).

[...] but a license is just a grant. [...] It is binding only on the licensor.
I assume you mean licensee. If not, I am simply incredibly confused about this whole law thing altogether.

Nope, I meant binding on the licensor, and that's a crucial point. A license waives the licensor's rights under copyright law. Having given a license, he is bound to waive those rights. He can't change his mind later and demand royalties. The licensee, on the other hand, isn't bound to anything. He's licensed to copy, but he doesn't have to copy. Unlike a contract, a license is a one-sided thing.

I know what you're thinking. The GPL licensee is required to make source code available. Well, no he isn't. Unless he makes provisions for source code, he isn't a licensee. The license doesn't exist. It's a conditional license.

If you think that's just two ways of saying the same thing, think what happens if I distribute "GPL" code you wrote, without source. If we had a contract, you'd be able to get a court to force me to distribute source code (or financial equivalent). But since all there is is your offer of a conditional GPL license, and I didn't meet it's conditions, so I don't have any license, all I am is a copyright violator. I broke a rule Congress made, not one you and I made. Congress said in that case you can make me pay royalties, or possibly have me put in jail, but you can't make me distribute source code.

... where the supplier of a piece of software is bound to unspecified conditions based on the actions of the licensee.

Can't happen. Conditions are for the licensee, not the licensor (supplier). All the licensor stands to lose by saying "or later" is his copyright. E.g. GPL 4 might say source code is optional and now the supplier's code is flying around doing nothing to advance free software in spite of the supplier's wishes.

If GPL 4 adds a "contribute all your patents" condition, that just means nobody will choose to be a licensee under GPL 4. It doesn't cost people who have already distributed software with an "or later" clause anything.