FSF's Star Turn in the Android FUDathon (LinuxInsider)
While it is true that section 4 of the GPLv2 license terminates your right to redistribute when you fall out of compliance, section 6 is equally clear when it states that you get a valid license from the copyright-holder with each new copy you receive. Resuming distribution is simply a matter of returning to compliance and downloading a new copy. It's true that this won't 'fix' previous compliance problems; depending on their nature, they may have to be negotiated with the copyright-holders or decided by a court, but the threat of the ultimate "big stick" -- of never being able to resume distribution with the new license automatically granted under section 6 -- is an attempt to impose restrictions that neither a plain reading of the license nor the rules dealing with take-it-or-leave-it contracts allows."
Posted Sep 9, 2011 22:19 UTC (Fri)
by pboddie (guest, #50784)
[Link]
The article comes across in certain ways as an advocacy piece for permissive licensing, and terms like "GNUstapo" that the author presumably regards as amusing are just puerile and offensive. When the author makes the remark to the effect that "Brett Smith didn't reply, so he obviously couldn't counter my argument, so I must be right", a more plausible explanation might be that Brett Smith regards further correspondence as a waste of his time.
What the article certainly doesn't dwell on - and one can only imagine why this might be, given the tone - is that the GPLv3 does mitigate the situation for those who fall out of compliance, and as a result distributors do not need to rely on logic games which selectively mention various clauses of the licence, whilst ignoring reasonably likely courtroom interpretations of those and other clauses, just to stay in the clear.
Posted Sep 9, 2011 22:48 UTC (Fri)
by khim (subscriber, #9252)
[Link] (2 responses)
It's funny how often people forget that law is "squishy" and court does not just interpret words literally. Intent is important, too. It's even funnier when people decide to recall that law is squishy but then decide that it'll only be squished in their direction. It's true that "standard form contracts" are limited in what they can do ("reasonable expectations" and all that), but the the question arises: is it reasonable to expect that repeated breaches of the license will not terminate your redistribution rights? This is certainly what'll happen with proprietary license, after all. It may be debated that technical accidental breach of contract should not trigger permanent revocation of rights, but to say that your brand-new, ready to use, fresh license is just download away no matter what you do... it just does not sound reasonable. The law basically says: if the term of contract are so onerous that "that no reasonable person would make them and no fair and honest person would accept them" - then these terms are null and void. But the terms "no new license till past transgressions are resolved" are accepted so often (in the proprietary world) that it's very hard to argue that they are "not reasonable". And yes, if past transgressions are serious enough then the license can be terminated permanently. You can not talk about "contracts of adhesion" in once sentence and then about "after all, it is a license, not a contract" in another. P.S. The fact that article is full of FUD about GPLv3 does not help, of course. Here is all the rebuttal you need. Ready-to-be-GPLv3-compliant (you can install modified version without even voiding [the hardware] warranty) and FCC compliant, too...
Posted Sep 12, 2011 6:55 UTC (Mon)
by PO8 (guest, #41661)
[Link] (1 responses)
IANAL, but no, in the US at least that isn't generally how contract law works. The judge or jury is charged to determine the intent of a contract or license based solely on the wording of the document itself. This is why bad drafting can have such serious consequences: even if *both parties* to an agreement concur that their intent is different from a judge's reading of the document, the judge may well ignore them.
Posted Sep 13, 2011 12:02 UTC (Tue)
by dbruce (guest, #57948)
[Link]
True, but intent does have a major effect on the arguments that the party's lawyers are going to make in a trial.
Or to the point - if the author of a GPL-licensed program says "yes, you really can just download another license with another copy and continue to distribute my work even though you used to be out of compliance", it is going to have a major effect.
Posted Sep 9, 2011 22:48 UTC (Fri)
by runekock (subscriber, #50229)
[Link] (6 responses)
One interpretation is that section 4 refers to GPL in general, while section 6 refers to a specific instance of a license grant. In this light, section 4 seems more general than section 6, and thus may possibly override it.
I wouldn't bet on the outcome of a court case. But common sense would say that the goal of the author is to have his code distributed as freely as possible, and that a "death sentence" would be contrary to that goal.
Posted Sep 9, 2011 23:20 UTC (Fri)
by khim (subscriber, #9252)
[Link] (3 responses)
Heh. You are almost correct. "License" (or "this License") in test means "Gnu Public License". This particular text. But "license" in paragraph 6 is just a verb (means "approval", "permit", "authorisation", etc). Paragraph 6 means that permit comes directly "from the original licensor" (this mean noone else may object), but of course this permit is only valid if you've not voided it by "any attempt otherwise to copy, modify, sublicense or distribute the Program". Any other interpretation just makes paragraph 4 quite pointless. Article tries to muddle the issue by invoking proprietary compiler licenses, etc. But these licenses don't talk about exclusive author rights (right to prepare derivative work, right to distribute copies, etc). Note that termination rights are absolute and cannot be waived. Also note that law is quite explicit: A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination - this means that your "brand new" license granted by paragraph 6 is invalid (because your license is brand new, true, but grant itself is quite old). There are some additional allowances to protect innocent parties, but GPL explicitly gives such grant anyway: "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".
Posted Sep 9, 2011 23:41 UTC (Fri)
by rickmoen (subscriber, #6943)
[Link] (1 responses)
"License" (or "this License") in test means "Gnu Public License". This particular text. But "license" in paragraph 6 is just a verb (means "approval", "permit", "authorisation", etc).
In the English (as opposed to American) language, the verb and noun forms of that word are disambiguated by spelling them as 'license' and 'licence', respectively.
Rick Moen
Posted Sep 10, 2011 0:39 UTC (Sat)
by ncm (guest, #165)
[Link]
Posted Sep 10, 2011 9:29 UTC (Sat)
by butlerm (subscriber, #13312)
[Link]
(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier. (17 USC 203(a)(3))
I take it then that some of the Android distributors may be in serious trouble about thirty or forty years from now.
Posted Sep 12, 2011 14:33 UTC (Mon)
by southey (guest, #9466)
[Link] (1 responses)
Thus you have must meet Sections 0 through 12 before you can get a new license under Section 6 which is impossible if you have already violated Section 4.
Posted Sep 13, 2011 17:21 UTC (Tue)
by guest (guest, #2027)
[Link]
LMAO!!!
Posted Sep 10, 2011 17:17 UTC (Sat)
by kripkenstein (guest, #43281)
[Link] (17 responses)
To be perfectly clear about what we are talking here: The FSF is pushing an interpretation of the GPL that allows license hostage-taking. By that I mean, it seems like any random contributor to the Linux kernel can, if you are not in compliance with the GPL at any point in time, take your project or business hostage by demanding whatever they want in return for reinstating your right to distribute that GPLed code. 1 million dollars? Why not more. SCO-type lawyers are probably searching for Linux kernel contributors right now that will play along with that.
We should also be clear about the potential targets of such actions. It isn't just evil corporations that willfully violate the GPL and laugh at requests for the necessary source code. There are many ways in which you can end up not in compliance due to natural disaster or clerical error. For example, you might distribute the wrong version of the source code by mistake, one ahead or one behind (or maybe you built the wrong version).
I've released a lot of GPL code. Had I known the FSF intended the interpretation of the GPL2 to be like this, I would never had done so. The spirit of the GPL is a beautiful thing, to share and collaborate, and this hostage-taking interpretation is completely against it.
The one point in the article I do not agree with is the last line, where it is assumed that a BSD kernel would not suffer from the same problem. I'm not sure that is true. The same sort of - ridiculous, in my opinion - interpretation of the BSD is possible: The BSD grants you a license. If you violate that - you fail to include proper copyright attribution - then you have no license. Nothing in the BSD license says that you get another license if you return to compliance later. But again, this is completely off base, just like with the GPL.
In conclusion, Section 6 of the GPL really seems very clear to me:
> 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.
Whenever anyone redistributes the Linux kernel, the person receiving it gets a new license, automatically, from the copyright holders. It's nice that the GPL3 makes this even more clear, and removes the requirement for another action of distribution. But the GPL2 was perfectly sound in that respect as well.
Posted Sep 10, 2011 17:40 UTC (Sat)
by dlang (guest, #313)
[Link] (12 responses)
even if they comply later, I don't see why they couldn't be sued for past copyright violations (something along the lines of 'prior to X they had no permission to redistribute this code')
so I don't think that the people arguing 'death penalty' are right, but I also don't think that people who are arguing that getting a new license with a new download gets people off scott free are right either.
Posted Sep 10, 2011 17:50 UTC (Sat)
by kripkenstein (guest, #43281)
[Link] (11 responses)
But the legal penalties for such past violations pale in comparison to not having a license for all future uses of the code. That's why I called it 'hostage-taking' - not having a license ever again will basically put you out of business. Whereas not having a license for a time period in the past will be nonfatal but still problematic (as it should be!).
Posted Sep 10, 2011 22:21 UTC (Sat)
by pboddie (guest, #50784)
[Link] (10 responses)
Unfortunately, some people are so obsessed with some phantom "evil agenda" behind GPLv3 that it's apparently fashionable to criticise the FSF for their legal opinion and for a licence text that has been superseded, rather than admit that GPLv3 actually offers some benefits.
Posted Sep 10, 2011 22:36 UTC (Sat)
by kripkenstein (guest, #43281)
[Link] (9 responses)
But interpreting the GPL2 in this dangerous way makes me start to regret all of that.
Posted Sep 11, 2011 1:54 UTC (Sun)
by flewellyn (subscriber, #5047)
[Link] (8 responses)
That's WHY they made GPLv3's terms for termination and reinstatement more clear, and more generous. Because they agree that this is NOT a good situation.
So the fact that they're saying "Oh, crap, this interpretation means something we didn't intend it to mean, we'd rather you use this newer version of the license that doesn't lead to this bad consequence", makes them LESS trustworthy in your eyes? I don't get it.
Posted Sep 11, 2011 2:17 UTC (Sun)
by kripkenstein (guest, #43281)
[Link] (7 responses)
But in any case what I have a problem with is something much more serious. What I would *like* to hear from them is this:
> "It has come to our attention that there is an alternative interpretation of the GPL2, where your rights are permanently terminated upon violation of the terms. This was not our intent when we wrote that license, nor we believe it to have been the intent of the many developers who released their source code under that license, and we believe it is simply a misreading of the license. We have also never enforced the GPL2 on code whose copyright we own in that way: When we approached a party that was in violation, we never implied their license was permanently terminated until they dealt with us - we always assumed they would get a new license automatically at the time where they came into compliance. So we believe there is no reasonable way to interpret the GPL2 in that manner. In any event, to prevent any possible misunderstandings we have clarified this in the GPL3."
But recent reports appear to indicate that the FSF has in fact enforced the GPL under the terminating interpretation (for example, B. Kuhn who was executive director of the FSF says this: https://identi.ca/conversation/79422867 ). Please tell me that isn't so and that I have misunderstood - I really hope I am wrong here.
Posted Sep 11, 2011 2:32 UTC (Sun)
by flewellyn (subscriber, #5047)
[Link] (1 responses)
The second article in the series linked in this very article has an example of exactly that.
I think the distinction you are drawing, however, is a distinction without a difference. When the FSF enforces GPL against someone for GPLed software on which they hold copyright, they say "You must do XYZ to be in compliance. When you do so, we will consider your license restored." Thus, BY MEANS OF coming back into compliance, the license is restored because that is the expressly stated intention of the FSF.
If the FSF did not explicitly say as much, then technically, the person or entity that returns to compliance has not formally had their license restored. However, in such a case where a party rectified a violation of the GPL and then continued to distribute GPLed software (correctly, and in compliance with the license) without an explicit regranting of the license, the FSF would undoubtedly say, if asked, "Yes, they're in compliance, so we consider them to have a license." And any reasonable judge would agree.
The law is not interpreted by computers, you see, but by humans. And humans would say "Yes, the clear intent here is to restore the grant of license if they rectify noncompliance issues."
Posted Sep 11, 2011 3:44 UTC (Sun)
by kripkenstein (guest, #43281)
[Link]
Again, I hope I am wrong and I would welcome a clear statement from them on their past enforcement actions.
Posted Sep 11, 2011 22:44 UTC (Sun)
by vonbrand (subscriber, #4458)
[Link] (4 responses)
One big problem with that WRT Android is that Linux' copyright isn't FSF's, so in principle somebody with this wacky interpretation of GPLv2 could still make trouble, even if the FSF states their intent as you say. And it sure is troubling that the FSF is essentially saying they are prepared to back up such nonsense to further GPLv3. What would be needed is a sort of sane GPLv2.1, i.e., GPLv2 cleaned up and with such corner cases clarified instead of all the new restrictions they added in GPLv3.
Posted Sep 12, 2011 6:49 UTC (Mon)
by dlang (guest, #313)
[Link] (3 responses)
Posted Sep 12, 2011 6:55 UTC (Mon)
by spaetz (guest, #32870)
[Link] (2 responses)
Posted Sep 12, 2011 9:10 UTC (Mon)
by pboddie (guest, #50784)
[Link]
Posted Sep 12, 2011 15:15 UTC (Mon)
by bronson (subscriber, #4806)
[Link]
I'll definitely take the under on your bet.
Posted Sep 10, 2011 17:43 UTC (Sat)
by ewan (guest, #5533)
[Link] (3 responses)
I'm curious what you thought the termination language was about then. If the interpretation that violators can get a new licence simply by re-downloading the code were correct that would make it essentially impossible to terminate the licence. I can imagine something like that happening, but being a bug in the licence text. I find it hard to see why anyone would think that would be the intended meaning - if you wanted a non-terminatable licence, why include the language at all?
Posted Sep 10, 2011 17:58 UTC (Sat)
by kripkenstein (guest, #43281)
[Link] (2 responses)
If you get another copy, you get another license, but not being in compliance means you lose that one too. So you have no license as long as you are not in compliance.
The termination clause makes it perfectly clear that you immediately lose those rights. So any act of distribution of the code from that point on - until you get a license you can use, after you return to compliance - is necessarily copyright infringement. And you are legally liable for that.
If the termination clause were not in there, then in theory there could have been an argument about when the license goes in and out of effect, and other possible arguments about what it means to violate a license as opposed to a contract and so forth. Explicitly mentioning termination was meant to prevent all such confusion. Sadly, it has led to much worse confusion apparently (even though 2 clauses down it is clear that you get a new license with each download!).
Posted Sep 10, 2011 19:16 UTC (Sat)
by freemars (subscriber, #4235)
[Link] (1 responses)
If you get another copy, you get another license, but not being in compliance means you lose that one too. So you have no license as long as you are not in compliance.
If the case goes to court I suspect the judge is going to see a pattern of abuse -- maybe letting the first violation 'get off easy' and awarding maximum damages for the following violations. A good lawyer would -- I hope -- advise against this defense.
Posted Sep 10, 2011 19:28 UTC (Sat)
by dlang (guest, #313)
[Link]
"so you had your license terminated 5000 times and still didn't learn, sounds like time for punitive damages now"
Posted Sep 12, 2011 7:38 UTC (Mon)
by geertj (guest, #4116)
[Link] (3 responses)
That said, the FSF has been consistent about its interpretation of its termination clause, and so i don't believe the alleged/aspired softer interpretation hoped for in the other comments. See the link below from from the "KDE needs to ask for forgiveness" debate from September 2000, where Stallman makes the point that the KDE project lost its redistribution rights for any GPL code by linking against the (at the time) non-GPL Qt. According to Stallman, to get distribution rights back, the project needs to ask for forgiveness to the respective copyright holders, and so in his view it's not something automatic that you get back by just downloading another copy.
http://www.linuxtoday.com/news_story.php3?ltsn=2000-09-05...
Posted Sep 12, 2011 11:02 UTC (Mon)
by spaetz (guest, #32870)
[Link] (2 responses)
For a moment I was scared the above were true: that Stallman can state that anyone lost rights for ANY GPL code. Reading the article, it becomes clear that he never said (or implied) that.
But you are right, that he stated in 2000: "Misusing a GPL-covered program permanently forfeits the right to distribute the code at all. "
So the FSFs position *is* consistent here. It also means that I will have to be careful if I want to continue to release Free Software that is available to all. Whenver I use another piece of GPL'd code in my projects I will now have to track down who already lost the redistribution rights so that he won't be able to distribute my code. Now, that does sound weird for a Free software project that attempts to not discriminate.
Posted Sep 12, 2011 11:21 UTC (Mon)
by nix (subscriber, #2304)
[Link]
Posted Sep 12, 2011 12:08 UTC (Mon)
by geertj (guest, #4116)
[Link]
Posted Sep 12, 2011 16:24 UTC (Mon)
by guest (guest, #2027)
[Link] (17 responses)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fe...
"In addition, prior to the filing of the infringement suit, RT Graphics
[E]ven assuming arguendo that the Miracle's conduct constituted a
Like the programmer in Graham v. James and the songwriter in Maxwell,
http://openjurist.org/443/f2d/773/loma-linda-university-v...
"A right to cancel a contract specifically provided by the contract
http://www.kentlaw.edu/faculty/rwarner/classes/ecommerceo...
"Even assuming Graham materially breached the licensing agreement and
Why should any court enforce the blatant circumvention of the
Posted Sep 12, 2011 16:53 UTC (Mon)
by jrn (subscriber, #64214)
[Link] (3 responses)
Wow, the law is sane sometimes. This lacks the downsides of both extremes some people have seemed to be presenting: (1) on one hand, distributors do not have to live in constant fear of the consequences of some ancient breach of license terms they never learned about and (2) on the other hand, a copyright holder could terminate the license when an uncooperative potential licensee violates the terms, with no get-out-of-jail-free card.
Thanks for the pointers.
Posted Sep 13, 2011 11:19 UTC (Tue)
by guest (guest, #2027)
[Link] (2 responses)
The situation is no different when Microsoft would terminate my
So just take a license, breach it, wait for termination, take
Rinse lather repeat.
To prevent that, I would suggest that the "free" and "open
Posted Sep 13, 2011 16:20 UTC (Tue)
by southey (guest, #9466)
[Link] (1 responses)
Sure you can always download the software but you must be in compliance with all sections of the GPL v2 before you can get a new license. That means if you have had your license terminated under Section 4 then you can not get a valid license just by downloading a new copy. Since the GPL v2 refers to the 'Program', you can not escape from the terms by downloading a different version or from a different location.
Posted Sep 14, 2011 14:05 UTC (Wed)
by guest (guest, #2027)
[Link]
Posted Sep 13, 2011 9:41 UTC (Tue)
by etienne (guest, #25256)
[Link] (12 responses)
Posted Sep 13, 2011 12:06 UTC (Tue)
by guest (guest, #2027)
[Link] (11 responses)
All "free" and "open source" licenses out there (even BSD
Posted Sep 13, 2011 12:48 UTC (Tue)
by etienne (guest, #25256)
[Link] (10 responses)
The GPL Is a License, not a Contract: http://lwn.net/Articles/61292/
Posted Sep 13, 2011 13:07 UTC (Tue)
by guest (guest, #2027)
[Link] (7 responses)
"Whether express or implied, a license is a contract 'governed by
"Normal rules of contract construction are generally applied in
"Although the United States Copyright Act, 17 U.S.C. §§ 101-1332,
"However, implicit in a nonexclusive license is the promise not to sue
BTW, the last one is about Artistic License being a contract (just
http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
"On behalf of the people JUDGMENT ... The GPL grants anyone who enters
http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
MySQL's counter-complaint asserting breach of GPL license contract
IBM's SIXTH COUNTERCLAIM (Breach of the GNU General Public License)
"SCO's GPL violations entitle IBM to at least nominal damages on the
Also worth noting (from IBM's brief regarding the GPL contract breach):
"the Court need not reach the choice of law issue because Utah law and
This licensing principle -- that all intellectual property licenses
http://lists.essential.org/upd-discuss/msg00131.html
Here's more:
"(A``non-contractual copyright permission'' would be some sort of
http://lists.softwarelibero.it/pipermail/diritto/2002-Feb...
-- the respondent's email address resolves to:
PETER D. JUNGER
How about this:
"The GPL IS a contract. Calling it a license simply describes the type of
http://www.mail-archive.com/license-discuss@opensource.or...
-- the respondent's email address resolves to:
ROD DIXON J.D. LL.M.
Finally,
REPLY BRIEF IN SUPPORT OF DEFENDANT INTERNATIONAL BUSINESS
"as is evident from the ProCD case Plaintiff cites, copyrights may be
Posted Sep 14, 2011 9:32 UTC (Wed)
by etienne (guest, #25256)
[Link] (6 responses)
Posted Sep 14, 2011 10:17 UTC (Wed)
by guest (guest, #2027)
[Link] (5 responses)
FOSS licenses have neither scope-of-use limitations nor any conditions precedent to the grant of rights.
Consider the following license:
"Provided that you paypal me ten dollars you can make no more than ten copies for the price of ten dollars per copy."
Initial act of paypaling ten dollars is condition precedent, no more than ten copies limitation is scope-of-use restriction, ten dollars per copy is consideration.
Got it now?
Posted Sep 14, 2011 11:35 UTC (Wed)
by etienne (guest, #25256)
[Link] (4 responses)
> Consider the following license:
That is for me a clear contract, the parties are defined and the agreement date is clear.
Now assume that my Rolce Royce classic car (I wish) was stolen from a public car park, and the person who did it was found.
In fact, I do not see when the contract (you are talking about) is created when someone put a GPL file on a fileserver and an unknown person later download that file.
Posted Sep 14, 2011 14:01 UTC (Wed)
by guest (guest, #2027)
[Link] (3 responses)
http://news.findlaw.com/cnn/docs/specht/specht70301ord.pdf
OTOH any act of exercising copyright right(s) granted by the license is a product of license contract: please do not confuse IP licenses with non-contract governmental permits such as gun dealer/fisher/driver licensees, etc...
Posted Sep 14, 2011 14:53 UTC (Wed)
by etienne (guest, #25256)
[Link] (2 responses)
I would still understand that, but in most case the people selling non GPL compliant products never had any copyright right(s) because they obviously refused the conditions of the license from the beginning.
To go back to your example, you say on Internet:
What happens then in front of the court?
Posted Sep 14, 2011 16:10 UTC (Wed)
by guest (guest, #2027)
[Link] (1 responses)
condition precedent
are different concepts and FOSS licenses totally lack conditions precedent and scope-of-use limitations (they are full of non-monetary consideration).
Posted Sep 15, 2011 8:55 UTC (Thu)
by etienne (guest, #25256)
[Link]
Please note that I am using the term "pre-condition" and not "condition precedent" because I am still not sure a contract can be established when the licensor has no way to know two things: the identity of the licensee and the date of the beginning of the contract.
Posted Sep 13, 2011 18:19 UTC (Tue)
by jrn (subscriber, #64214)
[Link] (1 responses)
That's very helpful.
The question becomes what "Any attempt otherwise [...] will automatically terminate your rights under this License" would mean in the context of a license --- is this an additional condition on further copying, modification, sublicensing, and distribution or just a way to emphasize which rights are reserved and require complying with other conditions? The FSF's intent was probably the former, but the latter also seems to be a popular interpretation.
Now the disagreement actually makes sense to me. Thanks for a clear explanation.
Posted Sep 14, 2011 9:49 UTC (Wed)
by guest (guest, #2027)
[Link]
The situation is no different when you rent someone your house and rentee breaches the contract (the breach does not "automatically" turn rentee into trespasser).
Posted Sep 13, 2011 12:18 UTC (Tue)
by dbruce (guest, #57948)
[Link] (1 responses)
Excuse me while I go and heave. So any device that is not locked down by the manufacturer is "insecure-by-design", and puts the stability of the network at risk? I guess that means all the linux servers on the internet need to go.
It *would* be a non-starter, however, to the telcos' profit model to give consumers full choice as to what software they run on their devices. I also admit that given full choice, some consumers would make bad choices and subject themselves to security risks. But the idea that only locked-down phones can be secure mobile computing devices is preposterous, as nearly all readers of this site must already know.
Posted Sep 16, 2011 16:03 UTC (Fri)
by JanC_ (guest, #34940)
[Link]
FUD-slinging
Yet another wannabe lawer...
Yet another wannabe lawer...
Yet another wannabe lawer...
FSF's Star Turn in the Android FUDathon (LinuxInsider)
It's even simpler...
khim wrote:
It's even simpler...
rick@linuxmafia.com
It's even simpler...
I think you forgot a part:
It's even simpler...
Section 4 says that you loose your rights under this License (capitalized). While section 6 grants a new licence (not capitalized) on every distribution.GPL v2 Section 6: "... subject to these terms and conditions"
This is not correct as you nicely drop part of Section 6 of the GPL v2 that says subject to these terms and conditions. This also makes the article wrong as well.
It is like playing the Monopoly game and getting the "Go to Jail" Chance card and collecting the $200 for passing "Go". That is you ignore that the part of the card that says 'Do Not Pass "Go" Do Not Collect $200'.GPL v2 Section 6: "... subject to these terms and conditions"
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
Had I known the FSF intended the interpretation of the GPL2 to be like this, I would never had done so.
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
License Hostage-Taking
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
never took affirmative steps to terminate the license which it had
granted. This court agrees with other courts which have previously held
that such a measure is necessary on the part of the copyright holder. In
Graham v. James, the Court of Appeals for the Second Circuit stated that
"[e]ven assuming [the publisher] materially breached the licensing
agreement and that [the programmer] was entitled to rescission, such
rescission did not occur automatically without some affirmative steps on
[the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of
Appeals for the Eleventh Circuit expressed a similar view:
material breach of the parties' oral understanding, this fact alone
would not render the Miracle's playing of the song pursuant to
[Albion's] permission a violation of [Albion's] copyright. Such a breach
would do no more than entitle [Albion] to rescind the agreement and
revoke [his] permission to play the song in the future, actions [he] did
not take during the relevant period.
RT Graphics never formally withdrew previously-given permission which
allowed the alleged infringer to use the copyrighted material. See also
Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996)
(even assuming that movie producer materially breached licensing
agreement to use composer's song in film, composer never attempted to
exercise any right of rescission and summary judgment of
noninfringement of copyright was proper); Cities Serv. Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach
does not automatically and ipso facto end a contract. It merely gives
the injured party the right to end the agreement; . . . ."). In the
case at bar, the court finds that there was no rescission of the
contract by plaintiff. Moreover, the Postal Service's conduct was
insufficient to justify any rescission which could have taken place,
and did not indicate a repudiation of the licensing agreement.
Accordingly, the court holds that the Use Agreement was at all times
valid and enforceable during the course of this dispute, and any
remedy which the plaintiff may seek for its failure to receive credit
cannot properly be based on a theory of copyright infringement. "
itself must be exercised within a reasonable time after discovery of
the facts upon which cancellation is predicated. As long as it is
exercised within that period, the right is not waived. Cocoa Prod. Co.
v. Duche, 156 Va. 86, 158 S.E. 719 (1931); John S. Hudson, Inc. v.
Power Plant Eng'r Co., 154 Wash. 172, 281 P. 324 (1929); see Davidson
Hardware Co. v. Delker Bros. Buggy Co., 170 N.C. 298, 86 S.E. 958. See
generally 17 Am.Jur.2d Contracts 497, 510 (1964); Annot., 164 A.L.R.
1014, 1024 (1946)"
that James was entitled to rescission, such rescission did not occur
automatically without some affirmative steps on James's part. 22A N.Y.
Jur.2d Contracts § 497 (1996) (The failure of a party to perform his
part of a contract does not per se rescind it. The other party must
manifest his intention to rescind within a reasonable time.) . . . "
requirement by law for the licensor to "manifest his intention to
rescind within a reasonable time ... "after discovery of the facts
upon which cancellation is predicated", or otherwise, be considered to
waive the termination right?
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
affirmative step(s) on the licensor part, what prevents the former
licensee from entering into licensing relationship anew?
Windows 7 EULA and I would simply go and buy another copy and
create another EULA relationship instead of terminated one.
another license, breach it, wait for termination...
source" public licenses specify a real *condition precedent*
regarding previously terminated permissions and condition the
new grant on successful resolution of the previous breach
dispute, if any.
Yes, but even assuming successful rescission/termination with
affirmative step(s) on the licensor part, what prevents the former
licensee from entering into licensing relationship anew?Read Section 6 of the GPL v2
Read Section 6 of the GPL v2
(an event which must occur, unless its non-occurrence is
excused, before performance under a contract becomes
due...) with "consideration" (compliance with the
requirements of the license in exchange to the licensed
grants).
FSF's Star Turn in the Android FUDathon (LinuxInsider)
In a lot of cases of software non compliance, a completely new product is for sale - it does contain GPL parts but does not provide any way to get the source code.
In that case the product maker/seller never had a license to distribute the GPL parts, you as the GPL licensor cannot withdraw (the copy) rights that you never gave in the first place...
FSF's Star Turn in the Android FUDathon (LinuxInsider)
(an event which must occur, unless its non-occurrence is
excused, before performance under a contract becomes
due...) with "consideration" (compliance with the
requirements of the license in exchange to the licensed
grants).
and MIT style licenses) are full of consideration
(obligations imposed on the licensees in exchange to the
licensed grants) and totally lack conditions precedent.
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not an
unlawful invasion of the rights of the owner."
De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, (1927)
ordinary principles of state contract law.'"
McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (Fed. Cir. 1995)
construing copyright agreements. Nimmer on Copyright sec. 10.08. Under
Wisconsin law, contracts are to be construed as they are written. When
the language is plain and unambiguous, a reviewing court must construe
the contract as it stands. In construing the contract, terms are to be
given their plain and ordinary meaning." (citations omitted).
Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, (7th Cir. 1999)
grants exclusive jurisdiction for infringement claims to the federal
courts, those courts construe copyrights as contracts and turn to the
relevant state law to interpret them."
Automation by Design, Inc. v. Raybestos Products Co., 463 F3d 749,
(7th Cir. 2006)
for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677
(9th Cir. 1996), citing De Forest Radio Telephone Co. v. United
States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive license
is, in essence, a mere waiver of the right to sue the licensee for
infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d
555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive
license may be oral or by conduct and a such a license creates a
waiver of the right to sue in copyright, but not the right to sue for
breach of contract)."
Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)
like any other copyright license).
into such contract... contractual relationship between the authors and
Defendant ... incorporated into the contract by virtue of the preamble
of the GPL ... Plaintiff, or the licensors from whom Plaintiff
derives his right, have not violated any contractual obligations
themselves ... Defendant, who violated contractual obligations"
("COUNT VIII Breach of Contract (GPL License)") and asking for
declaratory (court to declare GPL terminated) and injunctive (court to
preliminary and permanently enjoin Progress/NuSphere from "copying,
modifying, sublicensing, or distributing the MySQL(TM) Program")
relief (plus damages, of course).
against SCO... "SCO accepted the terms of the GPL... IBM is entitled
to a declaration that SCO's rights under the GPL terminated, an
injunction prohibiting SCO from its continuing and threatened breaches
of the GPL and an award of damages in an amount to be determined at
trial" (Pretty much the same as MySQL's claim above), BTW. From IBM's
memorandum:
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled"
that nominal damages are recoverable upon breach of contract); Kronos,
Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages
are always available in breach of contract action".). "
New York law are in accord on the issues that must be reached to
address SCO's sole argument on this motion, namely, that SCO did not
breach the GPL. Throughout this brief, IBM cites to both Utah law and
New York law."
are a type of contract -- was explained to Richard Stallman by
Professor Micheal Davis in 1999. See:
license that does not involve a contract I suppose, but that is not
a well defined term.)"
Professor of Law Emeritus
Case Western Reserve University
College: Harvard College, A.B. 1955
Law School: Harvard Law School, LL.B. (magna cum laude) 1958
contract it is."
Visiting Assistant Professor of Law, Rutgers University School of Law,
Camden, New Jersey, Fall 1999 to present.
EDUCATION: LL.M. (with Distinction), Georgetown
University Law Center, 1998. J.D., George Washington
University Law School, 1992. M.A., University of
Pittsburgh, Faculty of Arts and Sciences, 1986. B.A.,
University of Pittsburgh, College of Arts and Sciences,
1984.
MACHINES CORPORATION'S REASSERTED MOTION TO DISMISS (Wallace case
about the GPL):
licensed by a uniform contract effective against all who choose to use
it. (Response at 6) (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
1454 (7th Cir.1996).)"
FSF's Star Turn in the Android FUDathon (LinuxInsider)
I can understand that if both parties want to solve a problem using contract laws, that can be done once they agree a contract has been established when the problematic software has been taken.
For what I have read elsewhere, to have a contract, you need to have completely defined parties of the contract, and a clear start date.
Could you explain why a GPL licensor would want to recognise a contract would even exist when someone downloads the GPL file from a server, without having any intention to respect the GPL license?
Is it not more simpler to treat it as a simple stealing, a bit like:
Paul gives a license to Peter to connect to his computer to do a limited set of thing; Peter connect to the computer and copy the restricted "Patent Application" which would make Paul rich if he is able to process it without anybody knowing. Peter then continues to behave badly and Paul goes to court.
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
> "Provided that you paypal me ten dollars you can make no more than
> ten copies for the price of ten dollars per copy."
Can that person claim in front of the court that I decided freely to park in a public car park, so that I made a contract with anybody walking in the car park to allow them to look at my car - and the fact that he took the car away is a simple breach of that contract?
I think I would claim that there was no such contract, just maybe an implied license to look at the car.
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
> is a product of license contract.
"Provided that you paypal me ten dollars you can make no more than ten copies for the price of ten dollars per copy."
Then I do not tell you anything, and sell hundreds of copies for one hundred dollards each.
There is no contract, there is no license, there is nothing.
FSF's Star Turn in the Android FUDathon (LinuxInsider)
scope-of-use limitation
consideration (covenant(s) in exchange to the license grant(s))
FSF's Star Turn in the Android FUDathon (LinuxInsider)
The text of the GPL is obviously not under the GPL license, you are not allowed to modify it.
The beginning of the GPL text tells you when you are allowed to copy that text.
You need the right to copy the GPL text to become a licensor because you need to include a copy of that text with the software package you license to your users.
To become a licensee you probably also need to have the right to copy that text because it is part of the package you copy (i.e. install) on your computer.
Now the question is, what does it mean to lose the right to use the GPL after an infringement?
Do the infringer loose the right to copy the GPL text itself?
That is what I was thinking at the beginning, I am no more sure.
FSF's Star Turn in the Android FUDathon (LinuxInsider)
FSF's Star Turn in the Android FUDathon (LinuxInsider)
First rate FUD in the article
First rate FUD in the article