Not So Simple [LWN.net]

Not So Simple

Posted Dec 4, 2003 3:28 UTC (Thu) by ncm (subscriber, #165)
Parent article: The GPL Is a License, not a Contract

The GPL is certainly a license. But can't it also be a contract?

The essence of a contract is in agreement and exchange of value. Certainly somebody violating the GPL is not party to any contract, because their actions don't indicate agreement, and they have not returned any value to the copyright holder. Such a case can be tried purely on license grounds, and legally it's very simple, because the body of license law is much simpler than contract law.

But, suppose somebody abides by the license, and releases a derived work under the GPL. Then, both requirements to an implicit contract are satisfied. Abiding by the license signifies agreement, and releasing one's own work under the GPL offers value. It would be a good thing to consider this productive relationship a contract, because it means that if the original copyright holder announced that the work was no longer licensed under the GPL, the owner of the derived work would be able to prevent that, because it violates the implied contract.

I'm not a lawyer, but I have discussed this with lawyers. The issue of GPL retractions has not been addressed by the FSF, but pretending it can't happen seems risky. Entirely disclaiming the contract implied in the GPL would leave us with no legal tools to work with, in the event.

Of course, the FSF itself is not subject to problems with retracted GPLs, because it takes copyright assignments for everything in (e.g.) Gcc. Other projects, such as Linux, have not been so careful and would be at risk if they also disclaimed that contract. Fortunately, what the FSF says doesn't govern anybody else's interpretation of the GPL. Linux copyright holders would still be able to claim an implied contract if somebody tried to retract their code, no matter what Eben Moglen has said. Prof. Moglen's assertion does risk muddying that water, even as it clarifies the current situation.

Unlike programmers, most lawyers seem to like muddy water. If duels had traditionally been conducted by wrestling in mud pits, rather than with firearms at ten paces, they probably would not have been outlawed. Law, as a representative profession, would then have been a very different sort of activity, and lots more fun for non-lawyers to watch.

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no no no

Posted Dec 4, 2003 5:04 UTC (Thu) by coriordan (guest, #7544) [Link]

No. every paragraph above is wrong, probably every sentence. read the article again and an introduction to copyright, and some other stuff. It's not complex, new, or up for debate.

Not So Simple

Posted Dec 4, 2003 5:38 UTC (Thu) by ncm (subscriber, #165) [Link]

Nothing in the law is simple.

The law is messy because it involves people's messy problems, and because it's conducted by people whose livelihood depends on it remaining messy. Any time somebody tells you something in law is simple, you know you are being misled.

That said, it seems pretty clear that Prof. Moglen is not misleading anybody, as far as he goes. But, is Mr. O'Riordan claiming that a copyright holder is, somehow, not allowed by copyright law to withdraw a license? Who would have standing to complain about it?

Not So Simple

Posted Dec 4, 2003 6:47 UTC (Thu) by coriordan (guest, #7544) [Link]

> is Mr. O'Riordan claiming that a copyright holder is,
> somehow, not allowed by copyright law to withdraw a license?

yes.
When I give you a license, it it yours, not mine. I can stop giving out those licenses, but I cannot change, "withdraw", or take back what I have already given you.

Not So Simple

Posted Dec 4, 2003 17:19 UTC (Thu) by ncm (subscriber, #165) [Link]

Wishful thinking makes a very poor substitute for sound reasoning, never mind real case law analysis.

The GPL isn't "given" to you. The GPL describes conditions under which specific violations of copyright restrictions won't (therefore, can't) be prosecuted. If the owner later communicates to you a different set of conditions, you'd better have something stronger than your belief that you "own" the license.

An implied contract is the only thing I know of that would allow you to defend continuing to re-distribute under the old license.

Not So Simple

Posted Dec 4, 2003 20:06 UTC (Thu) by piman (subscriber, #8957) [Link]

The conditions for terminating a license are given in USC 17 203. It must be done within a 5 year period between 35 and 40 years after the grant was mode. It must be agreed to by a majority of the copyright holders. You must send out a written notice in advance.

And even then, 203b1 says that any derivative work made before the termination made can be distributed and modified under the terms of the (terminated) license. Since the GPL's granted rights are transitive, this means anyone receiving it from you has the full rights of the GPL.

An implied contract is the only thing I know of that would allow you to defend continuing to re-distribute under the old license.

Or, perhaps, you know. Copyright law.

Not So Simple

Posted Dec 4, 2003 22:09 UTC (Thu) by ncm (subscriber, #165) [Link]

Ha.

We've been through this one before. That clause was meant to allow musicians to terminate a license after 35 years even when they signed a contract granting the license in perpetuity. Only in California did the record companies find judges willing to take it to mean that a license couldn't be revoked before 35 years had elapsed. The decision is widely acknowledged as a mistake.

(The key line is "(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.")

Not So Simple

Posted Dec 5, 2003 14:08 UTC (Fri) by piman (subscriber, #8957) [Link]

Regardless of its purpose, USC 17 203 (especially 203b1, which still applies to 203a5) is there. It says that you can continue to abide by the terms of an otherwise-terminated license for a derivative work, and it lays out some pretty onerous terms for terminating the license in the first place.

But I've backed up my case -- where's your evidence that a copyright license can be revoked? How does it fit into USC 17 203?

I don't think a license is considered property.

Posted Dec 4, 2003 17:29 UTC (Thu) by guybar (subscriber, #798) [Link]

When I give you a license, it it yours, not mine

Are you sure about this ? AFAI understood the article, a license is
not property, i.e. it is neither "mine" nor "yours", but rather
it is a permission allowing "me" or "you" to use the owner's property.

A permission could be irrevokable, or not.

The GPL, AFAIK, cannot be revoked. But I see no reason why other
licenses (like, say, the permission to fish in a lake) couldn't.

I don't think a license is considered property.

Posted Dec 4, 2003 18:13 UTC (Thu) by ncm (subscriber, #165) [Link]

The GPL does not claim to be irrevocable. It's not clear that it would be even if it did say so. (That's probably why it doesn't.) The owner is allowed to change his mind about anything, including the revocation. He can't do it retroactively, but that doesn't help us much.

Revocation wouldn't make existing copies illegal, but it would keep you from distributing more.

Not So Simple

Posted Dec 4, 2003 20:05 UTC (Thu) by dthurston (subscriber, #4603) [Link]

> When I give you a license, it it yours, not mine. I can stop giving out
> those licenses, but I cannot change, "withdraw", or take back what I have
> already given you.

This is not so obvious (at least world-wide), and needs legal references.
For instance, I've seen Wood V Leadbitter (1845) 13 M and W 838 (in the UK)
cited as implying that licenses can be revoked upon due notice to licensee
under British law. I think I've seen a more specific instance of a
software license case in Australia.

no, he's 99% right

Posted Dec 5, 2003 17:12 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

every paragraph above is wrong, probably every sentence.

I find every sentence and paragraph correct and valid (and consistent with the article) with one crucial exception: The implied assent to the contract. The comment suggests that simply availing oneself of a GPL license could count as agreement to a contract.

It's a fair theory, but not supported in case law. You have to do something more explicit to agree to a contract. There is such a thing as a unilateral, or public, contract, which means you publish an offer that says, "If you do X, then I promise to do Y." Most people who distribute GPL software don't make such an offer, but even if they did (where "Y" would be "grant you a GPL license"), the way unilateral contracts work is that the offeror cannot sue the offeree for noncompliance (because the offeree's compliance was what made the contract exist).

I'm a contract lawyer, by the way, but have only a passing acquaintance with intellectual property law.

no, he's 99% right

Posted Dec 8, 2003 5:55 UTC (Mon) by ncm (subscriber, #165) [Link]

Well, what about section 45 (quoted in another message below)?

Wrong

Posted Dec 4, 2003 5:30 UTC (Thu) by spitzak (subscriber, #4593) [Link]

Wrong. The GPL is *not* a contract.

Nothing forces the GPL user to return anything of value. In fact they
could, quite legally under the GPL, modify the code and release a *worse*
program. By your logic they have therefore managed to charge the original
author some more by making the program worse. This is obviously silly.

Not So Simple

Posted Dec 4, 2003 5:47 UTC (Thu) by ncm (subscriber, #165) [Link]

While nothing forces a licensee to return something of value, once having returned something of value, the licensee can claim to have executed an agreement. It doesn't matter much how you, personally, or Mr. O'Riordan, or the revered PJ, or even Prof. Moglen feel about it. What matters is what makes sense to the judge(s) involved. Judges, as a rule, like to bring in contract case law. Often that was where they worked before they became judges.

There's hardly any human interaction that can't be turned into a contract, once you get to court, just as there's hardly a noun that can't be verbed.

Not So Simple

Posted Dec 4, 2003 7:13 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

While nothing forces a licensee to return something of value, once having returned something of value, the licensee can claim to have executed an agreement.

No, because the licensor is not under any obligation to accept any return of something of value, or to admit that the licensee has even provided anything of value. The licensor thus cannot unilaterally turn the license into a contract.

If I tell you that you can swim in my swimming pool on Thursdays, I've granted you a license. You can't turn it into a contract by dumping some chlorine into the pool and claiming that you've returned something of value.

Not So Simple

Posted Dec 4, 2003 7:16 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

I wrote:

The licensor thus cannot unilaterally turn the license into a contract.

That's true, but I meant to write that the licensee cannot unilaterally turn the license into a contract.

Not So Simple

Posted Dec 7, 2003 23:45 UTC (Sun) by ncm (subscriber, #165) [Link]

This seems to contradict the above:

§45. OPTION CONTRACT CREATED BY PART PERFORMANCE OR TENDER
(1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree begins the invited performance or tenders a beginning of it.
(2) The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer.
Comments: a. Offer limited to acceptance by performance only. This Section is limited to cases where the offer does not invite a promissory acceptance. Such an offer has often been referred to as an "offer for a unilateral contract" .

(Thanks to gumout.)

Not So Simple

Posted Dec 8, 2003 5:28 UTC (Mon) by ncm (subscriber, #165) [Link]

Also, see

http://www.idea.piercelaw.edu/articles/33/33_2/p225.Jones.pdf

Not So Simple

Posted Dec 4, 2003 6:14 UTC (Thu) by freethinker (guest, #4397) [Link]

Check me on this, folks? This is my understanding of how the GPL keeps free software free, come what may.

You don't need legal tools to cope with a GPL retraction. Just add one comment to one source file. Congratulations! You have just created a derivative work, copyright you, and the original licensor can't stop you, as long as you abide by the GPL.

Not So Simple

Posted Dec 4, 2003 6:56 UTC (Thu) by coriordan (guest, #7544) [Link]

You will hold the copyright to your one line, but it won't change that the copyright for the rest of the work is held by the original author.

Not So Simple

Posted Dec 4, 2003 8:58 UTC (Thu) by piman (subscriber, #8957) [Link]

But either way, you still have the license to use the work under the terms of the GNU GPL. They can't withdraw it, whether or not you added a line. They can prevent further people from getting a license from *them*, but since the license in question (the GPL) grants you the right to distribute the work, there's little they can do to actuallly stop distribution and modification of it.

(Just to clarify for freethinker.)

Not So Simple

Posted Dec 4, 2003 14:38 UTC (Thu) by freethinker (guest, #4397) [Link]

I see. That makes sense. Thanks.

Not So Simple

Posted Dec 4, 2003 17:49 UTC (Thu) by ncm (subscriber, #165) [Link]

No. The GPL doesn't give you the right to extend their permission to anybody else. (That would be a power of attorney.) Everybody who gets a copy from you gets it under their license. If they withdraw the license, your permission to distribute more copies ends. The permission of other people who have copies also ends, although they can keep the copies they have.

Any copies you have distributed are still legal; the copyright holder can't retract that. But future publication is controlled by the latest license you know about. (It's probably their problem to make sure you know about the new license; they might have to send you certified mail before it's binding.)

Not So Simple

Posted Dec 4, 2003 17:59 UTC (Thu) by amikins (subscriber, #451) [Link]

I don't believe that's correct; one of the points of the GPL is that it can't be retracted. So someone who has received something that was licensed under the GPL lawfully (that is, all the people doing the licensing had right to do so) can still distribute, no matter what someone farther up the chain may be yelling. It was licensed, the GPL doesn't have any mention of being revocable, and the standard GPL says at *YOUR* discretion a new license (specifically stated to be a newer version of the GPL) may apply.

'Your' in this case meaning the licensee, not licensor. So if you change your mind later, you're kinda out of luck.

Not So Simple

Posted Dec 4, 2003 18:18 UTC (Thu) by ncm (subscriber, #165) [Link]

Where does anything say that a license can't be retracted? Thus far nobody has cited anything stronger than their own fervent wish.

The law certainly allows you to retract permission for the use of your property any time, subject to any contractual obligations you have entered into. If there's no contract, there are no obligations on the copyright holder.

Not So Simple

Posted Dec 5, 2003 21:11 UTC (Fri) by freethinker (guest, #4397) [Link]

Section 0:

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".

To me this says that as long as the notice is there, you're licensed. If you redistribute, as long as the recipients' copies have the notice, they're licensed. And so on, as long as anyone has a copy.

Not So Simple

Posted Dec 4, 2003 6:20 UTC (Thu) by iabervon (subscriber, #722) [Link]

So far as I know, you can't retract a copyright license (assuming the
licensee has not violated it). If you've offered your code under the GPL,
you can't retract that. You can stop offering this license to people in
the future, but existing licensees retain their licenses, and in the case
of the GPL, they are licensed to sublicense to others. So even if the FSF
decided to stop giving away GNU software, I would personally be permitted
by law to distribute it myself. (And all of the mirrors, for that matter,
would be properly licensed to continue to distribute it).

Of course, the FSF could release proprietary versions of GNU software,
which wouldn't be available under the GPL. But that doesn't stop someone
else from taking over the GPL development of the same tools, since
everybody who's download GNU software is properly licensed to do so. The
case of Linux is even more significant; every Linux user is licensed to
release versions of Linux under the GPL, but nobody at all is licensed to
release versions of Linux under any other license. Even Linus couldn't
take Linux proprietary. Even the entire set of Linux developers with
known contact information may not be sufficient at this point (without
significant effort put towards replacing anything whose owner could no
longer be found).

The reason that the FSF is sure to keep the copyright to all of GNU is
that they want to be able to offer later versions of it under a later
version of the GPL if one becomes necessary. If there turned out to be
some problem with the GPL, it would be extremely difficult in the case of
Linux to get the right to release it under a revised version of the GPL.
Fortunately, the current version of the GPL seems to be satisfactory.

So an implied contract isn't necessary to protect your ability to use the
code. I doubt that the fact that someone had agreed to the GPL and
released something (even something related) under it before would be
sufficient to make the GPL a contract. Or at least, it would not be a
contract for future work. If you and someone else have been working
together on a GPL project, using the GPL as your license to distribute
the others code and offering the GPL to the other, and suddenly your hard
drive crashes, destroying your only copy, you might be able to compel the
other party to send you a copy of the last version you provided under an
implied contract (the two of you exchanged valuables and agreed on the
license for the edition you've lost). Any future versions the other party
might produce, however, are new works, and not subject to the contract
(if there is one) but only to copyright.

Not So Simple

Posted Dec 4, 2003 18:03 UTC (Thu) by ncm (subscriber, #165) [Link]

In fact, you can retract a copyright license. You just have to communicate the retraction to the people who have the old license. It's no different from telling somebody who is used to coming over for dinner Wednesday nights that he's not welcome any more. If he insists, you can have the police eject him, and charge him with trespassing.

Furthermore, the GPL doesn't give you the right to sublicense the original work; everybody who gets a copy gets the right to re-distribute from the original licensor, not from you. (You are obliged to extend them rights to re-distribute your own contribution.)

The GPL only says what it says. You can read it and find out what it says, we don't need to speculate.

Not So Simple

Posted Dec 5, 2003 14:51 UTC (Fri) by piman (subscriber, #8957) [Link]

Revoking a license is not the same as uninviting someone to dinner, and evicting them for trespassing if they do. It's much more like telling someone that they couldn't have come over for dinner last week, when you happily served them, and then immediately demanding your time, food, and occupied space back.

Not So Simple

Posted Dec 7, 2003 23:37 UTC (Sun) by ncm (subscriber, #165) [Link]

This is getting silly.

Copyright law is about publishing. If you give somebody license to publish your book this year, you can decide to have somebody else publish it next year. Withdrawing your permission doesn't mean they have to recall and destroy all the books they published. It means they have to stop publishing. That's all it means.

The case of software distribution is the same. When your license to publish is withdrawn, you just have to stop publishing. If you have a derived work, you should make sure that they have promised not to withdraw permission. The FSF makes that promise.

Not So Simple

Posted Mar 5, 2004 21:49 UTC (Fri) by crythias (guest, #19997) [Link]

From Parent:
Furthermore, the GPL doesn't give you the right to sublicense the original work; everybody who gets a copy gets the right to re-distribute from the original licensor, not from you. (You are obliged to extend them rights to re-distribute your own contribution.)

I just wanted to make sure that this point isn't left unanswered:
From the GPL (http://www.gnu.org/licenses/gpl.txt):
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.
3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the following: [Provide a reasonable way for recipient to obtain the source from you]
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 GPL is a fully cascadable license. Each recipient of GPL code can be a distributor. The only true option of a copyright holder (not GPL licensee!) is to distribute a (hopefully, revised, updated, better) new program under a different (perhaps, proprietary) license. Even if the copyright holder revokes the GPL, the acceptors of the GPL version of the code (source or object), even 2-3 levels deep, because they accepted a viable license, have to have full faith and credit of the license they received.

Basically, GPL isn't intended to be revokable. If that may be one's intent, one shouldn't use GPL.

Re: Not So Simple

Posted Dec 4, 2003 17:42 UTC (Thu) by Ross (subscriber, #4065) [Link]

I think the answer is no, but it doesn't really matter.

Even if a defendant claimed it was a contract there would be clear
evidence that they agreed to it if they are distributing or modifying the
work.

Not all contract require signatures. Buying a candy bar at the store is
a contractual agreement.

As for consideration, the licensee agrees to grant the same rights to
others, including the original author, for their own changes.

So even if someone wanted to argue it was a contract so they could back
out of it, how would they do so without showing that they agreed to the
contract? Or are you talking about the original author backing out?

Re: Not So Simple

Posted Dec 4, 2003 17:54 UTC (Thu) by ncm (subscriber, #165) [Link]

I'm talking about the original author backing out.

Re: Not So Simple - Revoking permission

Posted Dec 4, 2003 19:22 UTC (Thu) by Ross (subscriber, #4065) [Link]

The combination of sections 4 and 6 of the GPL seem to cover this. They
don't have any time limits and they make it clear that the grant of
rights is renewed everytime a work is distributed for the third party and
that the rights are granted only as defined in the license.

Under what conditions can someone normally back out of a contract?

This would seem especially difficult if the other party had acted on the
grant of permissions believing them to have been granted by the license
and believing they had met all obligations of the agreement.