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Making kernel license upgradeable

Making kernel license upgradeable

Posted Oct 14, 2004 16:15 UTC (Thu) by bfields (subscriber, #19510)
In reply to: Making kernel license upgradeable by hummassa
Parent article: Buying the kernel

in the case of a liquidation (if the FSF went bankrupt), the successor could close-source all of the GNU code, because it all belongs to the FSF.

Is that really likely?

In any case, even if the FSF were somehow completely taken over, wouldn't there still be the problem of breaking all the contracts the FSF has signed with copyright assigners? I seem to recall their standard assignment agreement including a clause where the FSF promises that the licensing of the code will always be "in the spirit of" the GPL, or something like that.

I doubt the GNU stuff is really at any more risk of proprietary branches than is Linux.

--Bruce Fields


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Making kernel license upgradeable

Posted Oct 14, 2004 23:19 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

even if the FSF were somehow completely taken over, wouldn't there still be the problem of breaking all the contracts the FSF has signed with copyright assigners? I seem to recall their standard assignment agreement including a clause where the FSF promises that the licensing of the code will always be "in the spirit of" the GPL, or something like that.

"successor" here means the person who bought the former assets of FSF, in particular, its copyrights. That person is not a party to the contract under which the author assigned the copyright, so he's not bound by anything in it.

On the other hand, it is common in contracts like this to say that the assignment is revocable and in the event the copyright is ever transferred, the assignment is revoked -- a poison pill. I wonder if the FSF contract has that.

Some US states view some such clauses as an interference with free trade that is not in the public interest and won't enforce them. And maybe copyright law (I know contracts, not copyright) makes a revocable assignment impossible.

Making kernel license upgradeable

Posted Oct 21, 2004 11:25 UTC (Thu) by Wol (guest, #4433) [Link]

"successor" here means the person who bought the former assets of FSF, in particular, its copyrights. That person is not a party to the contract under which the author assigned the copyright, so he's not bound by anything in it.

OH YES HE IS !!!

Let's say I buy your house and give you 100K for it. I then go bankrupt and the mortgagor repossess it. You'd scream blue murder if the mortgagor then proceeded also to reclaim the 100K I gave you for it - you've lost the house, and you've lost what was paid for it!

If the contract by which the FSF purchased the copyrights has covenants on it, then even a "successor in bankruptcy" can't ignore those covenants - to do so voids the original sale because the successor-in-interest has reneged on the original price.

Cheers,
Wol

Making kernel license upgradeable

Posted Oct 21, 2004 16:14 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

Let's say I buy your house and give you 100K for it. I then go bankrupt and the mortgagor repossess it. You'd scream blue murder if the mortgagor then proceeded also to reclaim the 100K I gave you for it - you've lost the house, and you've lost what was paid for it!

You got your example backwards. To be analogous to the FSF copyright assignment case, it would be: Instead of giving me 100K for my house, you promise to pay me 100K next year -- and without a security agreement (i.e. collateral, e.g. mortgage). The bank (who is btw the mortgagee, not the mortgagor) repossesses and I then try to get my 100K from the bank. I will not succeed. If you're broke, I've lost my 100K and my house.

If the contract by which the FSF purchased the copyrights has covenants

The only kind of property I've ever heard of with the ability to have a convenant run with the title is real property. In a contract, a "covenant" is nothing but a promise from one person to another and exists independent of any property whose transfer might also be part of the contract.

There is a special case (isn't there always) where there is an automatic "purchase money lien," but that doesn't apply here.

the successor-in-interest has reneged on the original price.

He can renege only if he was obligated to pay the price in the first place, which I say he wasn't. Successor in interest is a fairly recent invention in law, which means it is applied inconsistently from one jurisdiction and circumstance to the next. For example, in California if you buy most of the assets of a business and continue to operate it as essentially the same business, you become liable for the seller's unpaid sales tax under a successor in interest law. But it definitely doesn't say that any time property changes hands, it's an assignment of all the contracts of sale under which it previously changed hands.

That's why people execute security agreements (liens) and file them in a public office when they sell property. Then a subsequent transferee has a chance to know he might owe some 3rd party additional money for the property (not really -- he still doesn't assume any obligations -- he just might have to hand over the property). Without it, the 1st party has no claim against the 3rd.


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