Aiming at the GPL? [LWN.net]

Aiming at the GPL?

Posted Aug 21, 2003 19:56 UTC (Thu) by brouhaha (subscriber, #1698)
In reply to: Aiming at the GPL? by ksmathers
Parent article: Aiming at the GPL?

Incorrect. The GPL does not take away any rights from the author, either. I myself have sold non-GPL licenses for software that I also release under the GPL.

Copyright law allows the author to control distribution of his or her work. The GPL is one specific means by which the author can choose to control distribution, but the author does not lose any rights by doing so; he or she is only granting some restricted rights to others. This is an EXERCISE of the author's rights, not a waiver of them.

By your reasoning, ANY license under which software is distributed which allows the user to make additional copies beyond those automatically allowed by copyright law could be interpreted as the author waiving rights. For that matter, the same argument could be made about an author of a book; by allowing a publisher to print and sell the book, your argument suggests that the author has waived some rights. (If the author assigns the copyright to the publisher, the situation is somewhat different.)

The GPL is not unique in this regard; even some Microsoft EULAs have had clauses permitting additional copies. For instance, the license for Office 95 allowed installation on two computers, a main computer and a home or laptop computer. By granting that right, Microsoft exercised their right to control distribution of their copyrighted work.

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Aiming at the GPL?

Posted Aug 22, 2003 4:44 UTC (Fri) by ksmathers (subscriber, #2353) [Link]

Most authors except those who are self published waive their rights to exclusively publish their own work, typically in exchange for a cash advance, ongoing royalty, distribution and some degree of publicizing. They often also waive their implicit right to do business with a publisher of their choice by entering into an exclusive agreement.

All of these are forms of contract. A contract is predicated on an exchange of value for consideration, and a meeting of minds. I think that SCO has a pretty strong case that there was no appreciable consideration, and that there was no meeting of minds (which is a separate issue), and thus no contract ie: the GPL is invalidated as it applies to SCO code. At least their argument is strong enough that I wouldn't blithely assume that I know what the outcome will be.

Aiming at the GPL?

Posted Aug 22, 2003 9:27 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

Certainly the GPL is not a contract, exactly because of the meeting of minds problem. However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing", or "We can ignore the GPL because it isn't a contract". After all, if they decide they didn't accept the GPL for their Linux distribution, then they (SCO) could be found to have infringed the Linux kernel copyrights (not to mention other GPL'd software in their distribution) tens or hundreds of thousands of times. The statutory damages alone for that could rival the billions of dollars in damages they're asking from IBM. If actual and punitive damages were also added...

No, the GPL isn't a contract. But it doesn't need to be.

meeting of the minds

Posted Aug 22, 2003 15:59 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Why is there certainly no meeting of the minds?

It looks to me like there's as much meeting of the minds as with any other public (unilateral) contract, and GPL probably meets all the tests of being a legal contract.

meeting of the minds

Posted Aug 22, 2003 18:50 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

Why is there certainly no meeting of the minds?

Because for a contract to be valid, both parties have to receive something of value. With the GPL, the licensee fairly clearly gets something of value, the right to copy the code, but the licensor's value (if any) is very abstract and probably not legally sufficient to make the contract enforceable.

However, it doesn't NEED to be an enforceable contract per se. It works fine as a conditional grant of rights. No one can be forced to accept it, but if they don't accept it, they don't get any right to redistribute the GPL'd code.

Disclaimer: IANAL.

Aiming at the GPL?

Posted Aug 22, 2003 16:35 UTC (Fri) by ksmathers (subscriber, #2353) [Link]

[...] However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. [...] No, the GPL isn't a contract. But it doesn't need to be.

The GPL is a license. Licenses are a subtype of contract. There is no other legal theory for interpreting the GPL than contract law. If the GPL is not a contract then it is legally meaningless.

It can be argued that there was a meeting of minds, or as you put it yourself: I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing" [...]. There are legal reasons that have been established typically for centuries, for judging whether there has been a meeting of minds, and accepting consideration is one of those, and GPL can be argued to offer a form of consideration.

But conversely, SCO may have a good argument that they received nothing of considerable value in exchange for their code (due to their unique position as owner of the UNIX assets), and therefor that they must not be held to have effectively released their code under GPL license.

SCO also has a second argument in that they may not have been aware that they were releasing their own code until they found it in the Linux source. If that is the case, then they can also ask that the GPL be invalidated on the basis that there was never an intention to release that code under GPL, but that may be difficult to argue since presumptively they would assume to be aware of the content of products that they release. If SCO does get a court to agree that there was not a contract on this basis, it will probably be because of the precedent set in an 1887 dispute involving an unexpectedly pregnant cow.

A good description of the problems for SCO in the second argument is given in this C-Net article.

GPL gives up author's rights

Posted Aug 22, 2003 15:49 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

You're not seeing the big rights picture. Any time one person gets a right, someone else loses one. The GPL or any other copyright license gives the licensee the right to make a copy and takes away from the licensor the right to keep the licensee from making a copy.

Yes, the copyright holder retains other rights, such as the right to keep someone else from making a copy, but he has clearly ended up with less copy right than he had before he issued the license. That's why he normally gets something in return for the license, to compensate for the lost rights. In the case of GPL, he gets, among other things, a promise from the licensee that he will GPL his enhancements of the work.

People usually talk about this transfer of rights as "licensing" the right rather than "waiving" the right, but "waiving" is clearly a correct term.

GPL gives up author's rights

Posted Aug 22, 2003 18:57 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

People usually talk about this transfer of rights as "licensing" the right rather than "waiving" the right, but "waiving" is clearly a correct term.

Perhaps it is technically correct, but I have NEVER seen a copyright holder granting a license described in this way before. People don't describe Microsoft's EULA for Windows or Office as a waiver of Microsoft's rights, but in the sense you describe, it would be.

Perhaps I misinterpreted it, but the posting to which I was originally responding seemed to be attempting to make a point that the GPL was unique or at least rather unusual in acting as a waiver. I would claim that the GPL "waives" even less rights than the BSD license, and I have yet to see anyone claim the BSD license to be unenforceable because it is a "waiver".

GPL gives up author's rights

Posted Aug 22, 2003 21:04 UTC (Fri) by ksmathers (subscriber, #2353) [Link]

To say that a license is enforceable means that neither party to the license can back out of the license after the fact. Thus to be enforceable, SCO must be required to continue allowing the copied sources to be distributed under the terms of the GPL, and anyone in posession of that code must comply with the terms of the GPL if they distribute that source code or binaries based on it.

There is nothing unusual about the GPL with regard to its waiver. I have the feeling that we are getting stuck on semantics. Please feel free to substitute license, grant, or exercise for waiver throughout all of my messages if you are unhappy with the use of the word waiver. Regardless of the word you choose, I was attempting to explain why and how SCO can argue the legal rationale that they should not be bound to the terms of the GPL for code that they have rights to, and that originated from UNIX.

If anything the BSD license would be even weaker with respect to these arguments than the GPL is, but not because it is a waiver, rather because it doesn't exact any consideration in exchange for the waiver/grant/exercise of rights.

The question is whether SCO can back out of a bad bargain. There are two reasons that they can. First they can back out because there was no consideration, so the license can be invalidated. If the court decides that there was consideration then they can back out because of the mutual mistake of both SCO and the public that Linux did not contain UNIX source code. If both arguments fail and if SCO can't come up with some other theory under which the license can be invalidated, then the GPL can be enforced upon SCO.