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

Getting grubby with ZFS - GPLv2 or later legality

Posted Dec 17, 2010 22:45 UTC (Fri) by ccurtis (guest, #49713)
In reply to: Getting grubby with ZFS - GPLv2 or later legality by giraffedata
Parent article: Getting grubby with ZFS

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...

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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.