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

Bob Young writes a letter to Darl

Posted Dec 12, 2003 1:04 UTC (Fri) by JoeBuck (subscriber, #2330)
In reply to: Bob Young writes a letter to Darl by danw6144
Parent article: Bob Young writes a letter to Darl

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.

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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.