The GPL could possibly be revoked retroactively [LWN.net]

The GPL could possibly be revoked retroactively

Posted Aug 15, 2009 0:32 UTC (Sat) by mikov (guest, #33179)
Parent article: The unending story of cdrtools

There is a bigger problem. Under some legal interpretations, a GPL license can be retroactively revoked. So, if that is true, Joerg could conceivably simply do that.

I have posted about this in more details, with links to the legal opinions here, in my journal here : http://slashdot.org/~cecom/journal

I don't know if it is true - IANAL. It has never been done. I also know that the FSF claims that the GPL is non-revocable. However what I have read on the subject is at least some food for thought.

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Don't believe what you hear so easily.

Posted Aug 15, 2009 6:30 UTC (Sat) by BrucePerens (guest, #2510) [Link] (2 responses)

The fellow's argument wasn't very convincing in the context of British law, which he's writing for. It certainly isn't convincing in the context of US law where we do have a case (the first appeal in Jacobsen v. Katzer) finding that there is legal compensation involved in Open Source licenses even if it isn't money. And there's a case in Germany.

There's something you have to realize about lawyers. Every time there's a trial, the lawyers on both sides will argue their sides. Not the right side, both sides. That's what they are trained to do. This fellow is arguing a very very long-shot side for the sake of some unnamed client or just because he doesn't like the GPL (which is true for many lawyers). When you see a judge allow someone to withdraw the GPL, you can take him seriously. Until then, no.

Don't believe what you hear so easily.

Posted Aug 15, 2009 20:34 UTC (Sat) by mikov (guest, #33179) [Link] (1 responses)

Well, I certainly hope that you are right. But what about this opinion from David McGowan, Professor of Law, University of Minnesota Law School.

-----
"Termination of rights

[...] The most plausible assumption is that a developer who releases code under the GPL may terminate GPL rights, probably at will.

[...] My point is not that termination is a great risk, it is that it is not recognized as a risk even though it is probably relevant to commercial end-users, accustomed to having contractual rights they can enforce themselves.

The Free Software Foundations GPL FAQ disagrees with the conclusion I reach here. The FAQ asks rhetorically can a developer of a program who distributed it under the GPL later license it to another party for exclusive use and answers No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn. 89 Similarly, Lawrence Rosen, general counsel to the Open Source Initiative, has stated (in an FAQ on the SCO/IBM case) that Linux is available free, forever. Neither statement addresses the issue I raise here; I am not aware of the legal basis for either statement. I read them as understandable efforts to keep community members from over-reacting to low-probability risks. That may be sensible real-world pragmatism, a question I leave to the entrepreneurs. As a strictly legal matter, however, these comforting statements are too strong.[...]

What would happen if an author terminated GPL rights? If a single rights-holder held all the rights in the program, then termination would stop future F/OSS development of that program; users would no longer have the right to distribute modified versions of the code, or even unmodified copies of the versions they had."

--end quote--

This guy is a professor in US law, and it is not immediately clear that he "hates" the GPL or has a reason to spread FUD.

Also in this link http://www.wired.com/techbiz/media/news/2000/03/35258?cur... Eben Moglen himself all but confirms the same thing:

-----
"This is one of the reasons why the Free Software Foundation strongly urges authors of free software to assign their rights to FSF. It does them no harm and it provides us with precisely the signed instrument," said Eben Moglen, FSF general counsel and a law professor at Columbia University."
--end quote--

So, I don't think it is very clear cut. There is at least a somewhat plausible interpretation that the GPL is revocable.

Don't believe what you hear so easily.

Posted Aug 16, 2009 3:21 UTC (Sun) by BrucePerens (guest, #2510) [Link]

The Volokh and Moglen comments don't apply any longer because the appeal in Jacobsen v. Katzer established a precedent. They were speaking before that happened. By the way, I think the quote you are concerned with is of Volokh, not Moglen.

I'd like to see this tried. A person gets a license that claims to be irrevocable and has a reasonable expectation that it is. An assign of the copyright holder then claims that the license the copyright holder conveyed doesn't apply due to the assign's arbitrary decision.

Good luck with that :-)