Not So Simple [LWN.net]

Not So Simple

Posted Dec 4, 2003 5:38 UTC (Thu) by ncm (subscriber, #165)
In reply to: no no no by coriordan
Parent article: The GPL Is a License, not a Contract

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?

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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.