Bob Young writes a letter to Darl [LWN.net]

Bob Young writes a letter to Darl

Posted Dec 12, 2003 0:50 UTC (Fri) by danw6144 (guest, #14336)
Parent article: Bob Young writes a letter to Darl

"Because the GPL does not require any promises in return from licensees, it does
not need contract enforcement in order to work." -- Eben Moglen --

JUDGE: We are here today in the matter of Plaintiff FSF versus Defendant John
Doe. This matter considers an allegation of unauthorized distribution of
software code that was copyrighted by the FSF and allegedly distributed by Mr.
Doe.
Now, before we proceed further in this matter are there any stipulations by the
parties ?

FSF: Yes your Honor, the FSF and Mr. Doe have agreed to stipulate that all
matters in this proceeding should be held to and enforced by authority of
copyright law and not contract law.

DOE: We agree your Honor, the GPL is a license and not a contract. Therefore we
stipulate enforcement under copyright law and not contract law.

FSF: We further enter into evidence this copy of the GPL provided by the FSF.

DOE: We concur your honor. Our GPL copy is identical.

JUDGE: Mr Doe did you distribute the code in question?

DOE: I did absolutely distribute the code. That's true beyond a reasonable
doubt.

JUDGE: Why shouldn't you be found guilty of unauthorized distribution under the
Federal Copyright Act?

DOE: I had permission. It's right there (pointing). It's the GPL. The FSF gave
me a copy. See "Section 1" right there ? It gives me permission to distribute.

JUDGE: The "Section 1" referred to reads:

"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."

Clearly the Copyright Act provides for distribution with permission I fail to
understand why the plaintiff is complaining.

FSF: But your Honor the defendant failed to publish a copyright notice and
disclaimer of warranty! Section 5 of the GPL reads:

"5. You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify or
distribute the Program or its derivative works. These actions are
prohibited by law if you do not accept this License. Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it."

The defendant had to accept all the license terms and conditions of the GPL to
get the permissions in Section 1!

JUDGE: What say you defendant Doe?

DOE: Your honor "acceptance of license terms and conditions" is addressed
nowhere in copyright law. A extensive search of the Copyright Act reveals no
reference to this concept. There's no Restatement (Second) of Copyrights
mentioning anything about "acceptance of terms and conditions". There's a Nimmer
on Copyright, but there's nothing on "acceptance of license terms and
conditions" there either. The term has no meaning promulgated under copyright
law, therefore it's just verbiage with no legal meaning or effect. The "you may
copy and distribute" is precisely defined in the Copyright Act and that's all I
did.

JUDGE: Plaintiff and Defendant have stipulated that the GPL would be enforced
under copyright law. Clearly Section 1 is a grant of permission. Likewise Section
5 is clear, it cannot mean anything under copyright law as there's simply nothing
in copyright law that gives effect to Section 5, therefore I find for defendant
John Doe in this matter.

FSF: Maybe a little contract law ain't such a bad thing after all.

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Bob Young writes a letter to Darl

Posted Dec 12, 2003 2:18 UTC (Fri) by danw6144 (guest, #14336) [Link]

Here's an exchange between law Professor Junger from Case Western Reserve
University and Alessandro Rubini.
Professor Junger is well know from the Junger v. Daly appellate decision on export prohibition of software encryption code.

http://lists.softwarelibero.it/pipermail/diritto/2002-February/000641.html

note the:

> ....(A
> ``non-contractual copyright permission'' would be some sort of license
> that does not involve a contract I suppose, but that is not a well
> defined term.)

If you find a reference to a ``non-contractual copyright permission'' please let me know.

Bob Young writes a letter to Darl

Posted Apr 23, 2004 11:52 UTC (Fri) by bojan (subscriber, #14302) [Link]

From UCITA

5. Non-Contractual, Intellectual Property Notices. Subsection (d) clarifies that this Act does not apply to copyright or other intellectual property notices that are not a contract. This Act applies to agreements and contracts. Thus, the Act does not apply if an academic physicist in Houston creates program code and makes it freely available to other academics or individuals as a way of contributing to the development of so-called "free software" or "open source" software. Non-contractual conduct is not covered by this Act.

Now, I know that UCITA has been written by schmucks, but hey, if they understand the "non-contractual" then maybe it's time for you too?

Bob Young writes a letter to Darl

Posted Apr 23, 2004 12:23 UTC (Fri) by bojan (subscriber, #14302) [Link]

Just to make it clear what the above comment from UCITA relates to:

(d) [ Intellectual property notices.] This [Act] does not apply to an intellectual property notice that is based solely on intellectual property rights and is not part of a contract. The effect of such a notice is determined by law other than this [Act].

Strange stuff... One would almost think that such notices can actually have some effect, even when there is no contract. Really, really strange...

Bob Young writes a letter to Darl

Posted Dec 12, 2003 1:04 UTC (Fri) by JoeBuck (subscriber, #2330) [Link]

You forgot about section 4:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

SCO has attempted to sublicense the Linux kernel. This means that they forfeit their permission to distribute the Linux kernel. There is also section 6:

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. ...

I am certain that, by now, someone at IBM has downloaded the source to the Linux kernel from SCO's FTP site, just to gather evidence if nothing else. Likewise for Red Hat and lots of other folks. This means that either SCO has granted IBM and Red Hat the right to distribute anything that SCO distributed as part of the Linux kernel, or else they are in violation.

Darl wants to argue that the GPL is invalid. But if the GPL is invalid, then his company has no permission to distribute Linux, and they are guilty of copyright infringement.

Bob Young writes a letter to Darl

Posted Dec 12, 2003 1:10 UTC (Fri) by JoeBuck (subscriber, #2330) [Link]

In case it wasn't clear, your attempt to say that section 5 is invalid, even if upheld, would not cancel sections 4 and 6.

That said, copyright law gives the copyright holder monopoly right over distribution of the work. Your clever attempt to trick your straw man Moglen into punting the case would be unlikely to work in real life; it basically says "accept these terms or I don't give you permission to distribute".

Bob Young writes a letter to Darl

Posted Dec 12, 2003 2:03 UTC (Fri) by danw6144 (guest, #14336) [Link]

There is a "crystal clear" exchange between Richard Stallman and a law professor at Cleveland State University on this subject.

http://lists.essential.org/upd-discuss/msg00131.html

Sometimes "clear" is in the eye of the beholder.

Bob Young writes a letter to Darl

Posted Dec 12, 2003 19:03 UTC (Fri) by jre (guest, #2807) [Link]

Sure.
And in his reply to Prof. Mickey Davis, RMS hit the nail on the head:

"The crucial point is that when we release a program under the GPL, we do not claim that all possessors of a copy have agreed to any contract with us."

You quoted Prof. Eben Moglen as stating the practical import of this at the beginning of your post, viz.:

"Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work." -- Eben Moglen

All you seem to be saying is that some concepts of contract law are implicit in copyright law, otherwise the whole thing would never work.

Well, duh.

Defendant John Doe in your example claims the right, because contract law has been explicitly excluded from consideration, to stop listening at any point he deems appropriate. So he read the GPL right up to and through the part about "you may copy and distribute" -- then he shut his eyes and refused to read another word. That way, when he is called to account for GPL violation he can say "Ha, ha, contract law doesn't apply, so you can't touch me."

That's silly. If contract law and copyright law could ever be divorced in the way you hypothesize, I could ask for permission to quote some part of an author's work, then as soon as he got past saying "Sure, you have permission ..." I could clap my hands over my ears and start whistling "The Stars and Stripes Forever." Then I would just reprint the whole thing and claim that contract law doesn't apply.

Whether you call it a "license" or a "unilateral contract" is a distinction without a difference. What is important is that, in this case, the recipient is under no reciprocal obligation except the responsibility to understand what permission is being given.

The GPL as a grant of rights, not contract

Posted Dec 12, 2003 4:13 UTC (Fri) by jvotaw (subscriber, #3678) [Link]

You wrote: FSF: Maybe a little contract law ain't such a bad thing after all.

The reason the GPL works without being a contract is subtle: it does not affect the user's behavior outside of the scope of the author's copyright on the work.

Copyright law gives authors several exclusive rights, including the right to distribute their work and the right to make derivative works. Authors can, entirely at their discretion, grant these rights to other people.

The trick is, copyright law allows you to give others only part of your rights, if you so choose. You can give others as large or as small a part of your rights as you want. For example, you might give someone the right to distribute your book, but only on Fridays. Or you might give them the right to make a derivative work, but only if it's a literal translation into Portugese and they clear the translation with you before publication.

The GPL works by granting a very specific, thin slice of rights: "I grant you the right to distribute my work, or make derivative works, but only in the case where you grant others the same rights I'm granting you." The rest of the GPL's text is just implementation details.

The GPL does not force users to do anything outside of the scope of the original author's copyrights. It does not require users to pay the author money, or refrain from saying bad things about the software, for example. Those things were up to the user's discretion before accepting the license, and afterwards.

If an author wanted to affect the user's behavior outside the scope of the rights you're granting them, she'd need a contract. The GPL doesn't go outside of that limited scope so doesn't need to be a contract.

This means the GPL is more internationally portable, since copyright law seems to be more uniform in different nations (for good or ill -- thanks, WIPO) than contract law.

-Joel

Bob Young writes a letter to Darl

Posted Dec 12, 2003 4:58 UTC (Fri) by iabervon (subscriber, #722) [Link]

After the judge reads section 1 of the GPL, the FSF should simply respond
that what DOE was not distribution of the work with permission, because
DOE didn't have permission to distribute the work, except if
"conspicuously and appropriately publish[ing] on each copy an appropriate
copyright notice and disclaimer of warranty". Section 5 is irrelevant
(and it essentially merely informational, since it essentially just
repeats copyright law). Just because the GPL grants you permission to do
one thing doesn't mean that it grants you permission to do whatever you
want.

Falling back to Copyright law, the owner of the copyright has the
exlusive right to distribute copies of the work and to authorize others
to distribute copies of the work. DOE has not been authorized to
distribute copies of the work, having failed to fit the pattern given in
section 1 of the GPL, and is therefore infringing.

For that matter, if the authorization to distribute copies of works is
automatically considered a contract, then by excluding contract law, DOE
has eliminated any possibility of not infringing the copyright, since
that would mean that only a contract would permit distribution.

However, it seems to me that current practice holds that a copyright
owner may authorize limited distribution without needing a signed
contract.

Bob Young writes a letter to Darl

Posted Dec 12, 2003 7:10 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

Your argument is extremely disingenous. Section 1 grants permission to copy and distribute verbatim copies of the work, provided that you include the copyright notice, etc. The defendant does not have to accept the license. If the defendant does not accept the license (and has not been otherwise granted some permission by the copyright owner), he or she has EXACTLY the rights granted by copyright law, which (in general) do not allow distribution of copies.

This is true even if the court chooses to ignore section 5 of the license.

If I don't accept the license for Microsoft Word, I'm not allowed to distribute copies of it. If I don't accept the license for GCC, I'm not allowed to distribute copies of it. By not accepting a software license, I gain no permissions beyond what is automatically granted by copyright law, and that is true whether the license is commercial or GPL.

If I want to distribute copies of a GPL'd work (either verbatim or derived), I have two choices:

Accept the license (GPL). The GPL provides a conditional grant of permission.
Negotiate some other license with the copyright owner. In this case the GPL is irrelevant.

You seem to be suggesting that the defendant could somehow construe section 1 of the GPL to be an UNCONDITIONAL grant of permission, but nothing in section 1 nor elsewhere in the GPL supports that idea.

Another example: I could write and give to my neighbor a license granting him the use of the swimming pool in my back yard on the condition that he not bring beer bottles into the yard. The neighbor doesn't have to accept this license. But if he chooses to accept it, then brings beer bottles into the yard, he's not going to be able to convince the court that I had granted him UNCONDITIONAL permission to use the pool, just because he doesn't like the condition imposed by the license. If he argues that he didn't accept the license, then he had no license to use the pool, and was trespassing.

Bob Young writes a letter to Darl

Posted Apr 8, 2004 2:30 UTC (Thu) by bojan (subscriber, #14302) [Link]

I was re-running this scenario with the original BSD licence multiple times through this imaginary court case and the conclusions came up exactly the same. This is from the original BSD licence:

-------------------------------
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. All advertising materials mentioning features or use of this software must display the following acknowledgement:

This product includes software developed by the University of California, Berkeley and its contributors.

4. Neither the name of the University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
-------------------------------

Now, to view this in the light of the crucial part of this court case, it would go like this:

-------------------------------
FSF: But your Honor the defendant failed to publish a copyright notice and the advertising clause! Sections 1 and 3 of the licence specifically ask for this. The defendant must have met the conditions of the licence if he wanted to get permission to copy.

JUDGE: What say you defendant Doe?

DOE: Your honor "meeting of the terms and conditions" is addressed nowhere in copyright law. An extensive search of the Copyright Act reveals no reference to this concept. There's no Restatement (Second) of Copyrights mentioning anything about "meeting of the terms and conditions". There's a Nimmer on Copyright, but there's nothing on "meeting of the terms and conditions" there either. The term has no meaning promulgated under copyright law, therefore it's just verbiage with no legal meaning or effect. The "you may copy and distribute" is precisely defined in the Copyright Act and that's all I did.
-------------------------------

Absolutely no difference to the GPL, except that the word "accept" was substituted with "meet".

However, Copyright Act explicitly talks about "terms and conditions" in a number of its sections, so one would have to conclude that "terms and conditions" are an integral part of copyright licensing and the "extensive search" would actual turn up quite a number of hits (uness done by MIT mathematicians that found Unix code in Linux :-).

I don't see any difference whatsoever here. Basically, your theory boils down to this:

It is not possible to have conditions attached to a copyright licence without involving the contract law.

Given what licences are (i.e. permissions for what otherwise wouldn't be permissible by law) and the fact that they are usually associated with property grants (i.e. copyright is property) and the fact that they _always_ have conditions attached (e.g. you may enter my property on Sunday only), I think your theory is quite incorrect.

Bob Young writes a letter to Darl

Posted Apr 24, 2004 1:44 UTC (Sat) by bojan (subscriber, #14302) [Link]

Let's assume for a moment that Doe is in fact correct when he asserts:

Your honor "acceptance of license terms and conditions" is addressed nowhere in copyright law.

This can be for three reasons:

there is a problem with "acceptance"
there is a problem with "terms and conditions"
there is problem with both

Here is a small reminder of the text of the GPL:

TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION

After this, terms and conditions are listed, from section 0 to section 12

Under what theory can Doe "accept" only section 1 of "terms and conditions", as you point out, if "acceptance of license terms and conditions" is completely bogus?

If "acceptance" is the problem, the bogus section 5 about "acceptance" doesn't apply and is wiped out. The rest of the "terms and conditions" stay, including section 1 (from which Doe supposedly gets his permission), 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12. Quite sufficient for enforcement of copyright.

If "terms and conditions" are the problem, then section 1 is one of those "terms and conditions", so that doesn't apply either, because they were wiped out under the theory that having "terms and conditions" is impossible.

If both, see above. Meaning, sections 0 to 12 get wiped out. Quite clearly, no permission.

It is not possible, according to your own theory, to justify what Doe is doing with that copyrighted work.