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Last week, I examined the nuances of a marketplace for licenses, and its relationship to a parallel marketplace for products that use those licenses. This time, for those readers who might actually be in the market for a license, let's review the one that gets the most ink -- the General Public License (GPL). There is no question that the GPL is an important product. It enjoys a huge portion of the license market relative to other licenses.
I find it very ironic you should spend so much ink covering the import of adopting licenses that "have been tested in court." When was the last time one of these shrinkwrapped licenses were actually tested? I don't know anyone with the funds or time to go up against a Microsoft or the SPA. But I do see quite a lot of wrangling going on at present over the GPL and a certain unix-ey corporation, and I also know several folks (a couple of them pretty good friends) who have _succesfully_ challenged inclusion of their GPL software in (non GPL) commercial products. Of course, those cases were much like the Microsoft (non) cases - when presented with the facts the infringer chooses the option of backing down and fixing the problem rather than spending money on one of those "legal challenges" you espouse.
Anyway, last time I heard of one of these "tests" happening regarding shrinkwrap licenses it was... oh, let's see... a certain Adobe case where the plaintiff (that would be the licensor in this case, Adobe) was pretty much left hanging because click-through licenses couldn't be (at least in that case) considered a legally binding contract.
Hmmmmmm....
Anyway, last time I heard of one of these "tests" happening regarding shrinkwrap licenses it was... oh, let's see... a certain Adobe case where the plaintiff (that would be the licensor in this case, Adobe) was pretty much left hanging because click-through licenses couldn't be (at least in that case) considered a legally binding contract.
Hmmmmmm....
Re: A Consumer's Review of the General Public License
Posted by: terekhov 2004-07-21 11:34:08 In reply to: Phil Albert
Keep up good work, Phil. I invite folks to read
http://www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp Don't miss the definition of "derivative computer programs" (323). In German law, "derivative work" is called "Bearbeitung" (something creative enough to have a copyright on "derivative work") and "Umgestaltung" (modifications can't be copyrighted). Compilations are "Sammelwerke". It's quite clear that when you "compose" copies together (not modifying or even reading the code) the result is a compilation, not a derivative work. You should also read "Christian H. Nadan, A Proposal to Recognize Component Works: How a Teddy Bears on the Competing Ends of Copyright Law, 78 Cal.L.Rev." (it's available on westlaw for just 12 bucks via credit card). His paper is cited in http://courses.cs.vt.edu/~cs4984/computerlaw/lewis.doc ("LEWIS GALOOB TOYS, INC. v. NINTENDO OF AMERICA, INC.") It's probably the same "Christian H. Nadan" who wrote the devastating "legal review" of the idiotic FSF's interpetation (which is nothing but politically motivated "FUD" and groundless bluffing) of the GPL. http://groups.google.com/groups?selm=40EE8CDC.977AE902%40web.de Hth.
--
#include <war> // computer game war stuff ;-)
int main() {
unsigned explosive_power = 0;
while (still_not_eliminated("FSF"))
send_a_bomb("FSF", explosive_power += 10/*kiloton*/);
}
http://www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp Don't miss the definition of "derivative computer programs" (323). In German law, "derivative work" is called "Bearbeitung" (something creative enough to have a copyright on "derivative work") and "Umgestaltung" (modifications can't be copyrighted). Compilations are "Sammelwerke". It's quite clear that when you "compose" copies together (not modifying or even reading the code) the result is a compilation, not a derivative work. You should also read "Christian H. Nadan, A Proposal to Recognize Component Works: How a Teddy Bears on the Competing Ends of Copyright Law, 78 Cal.L.Rev." (it's available on westlaw for just 12 bucks via credit card). His paper is cited in http://courses.cs.vt.edu/~cs4984/computerlaw/lewis.doc ("LEWIS GALOOB TOYS, INC. v. NINTENDO OF AMERICA, INC.") It's probably the same "Christian H. Nadan" who wrote the devastating "legal review" of the idiotic FSF's interpetation (which is nothing but politically motivated "FUD" and groundless bluffing) of the GPL. http://groups.google.com/groups?selm=40EE8CDC.977AE902%40web.de Hth.
--
#include <war> // computer game war stuff ;-)
int main() {
unsigned explosive_power = 0;
while (still_not_eliminated("FSF"))
send_a_bomb("FSF", explosive_power += 10/*kiloton*/);
}
Since you seem to want to nitpick the GPL, here are some nitpicking answers to your argument.
GPL3 is not vaporware. Pre-beta versions can be found on the web.
..
GPL2 was written by Richard Stallman, who is not a lawyer. However, Eben Moglen is an intellectual property lawyer who has successfully enforced the GPL for over ten years without having to go to court. (Courts have to interpret the unclear language written in licenses and contracts by lawyers; apparently the GPL doesn't have unclear language in any important respect.)
..
Nobody approached by the FSF for a GPL violation has volunteered to be the first test case. You might say that SCOG is an exception, but FSF did not sue SCOG, and IBM's countersuit against SCOG was for copyright infringement. SCOG might say that the GPL licensed it to distribute Linux, but SCOG did not satisfy the conditions of the license, so it did not have permission to distribute.
..
Your nitpicking about "work based on the Program" is misleading. The definition is before the colon. After the colon comes "that is", which clearly indicates an explanation, not an alternate definition. The explanation is just a short description of how "work based on the Program" interacts with the copyright law definition of derivative work, but you mistakenly take it for an attempt to redefine "derivative work".
..
Your argument on notice is over-simplified and incomplete. The GPL does not give anyone permission to remove the copyright notices in a GPL'd program, so anyone that does it is violating copyright law and distributing the illegal program also violates that law. Anyone who knows that the program is illegal has no right to receive it. Anyone who does not know still violates copyright law by using it, but may escape damages other than being forced to stop. Anyone who distributes the illegal program will have to show due diligence in determining what license he or she had to do it.
..
Lawyers can argue anything they want. When they can't pound on the facts or the law, they pound on the table. (For example, look at SCOG).
..
Any lawyer that take an unbiased look at the GPL will realize that it is a license that gives conditional permissions. If you don't obey the conditions, you don't get the permissions. No contract.
..
It is also possible to look at the GPL as containing a public offer that can be accepted by doing something contained in the offer. There is no contract, but if you do that thing, you accept the offer and create a contract. There is no practical difference in these viewpoints.
..
Since companies like IBM and HP spend billions of dollars on GPL'd programs, they, as I, must think that GPL2 is steel plated and has no significant bugs. The clay piggy banks have not be used for more than a decade. All GPL3 has to do is to answer the nitpicking, and add additional armor in the form of discouraging patent predators.
GPL3 is not vaporware. Pre-beta versions can be found on the web.
..
GPL2 was written by Richard Stallman, who is not a lawyer. However, Eben Moglen is an intellectual property lawyer who has successfully enforced the GPL for over ten years without having to go to court. (Courts have to interpret the unclear language written in licenses and contracts by lawyers; apparently the GPL doesn't have unclear language in any important respect.)
..
Nobody approached by the FSF for a GPL violation has volunteered to be the first test case. You might say that SCOG is an exception, but FSF did not sue SCOG, and IBM's countersuit against SCOG was for copyright infringement. SCOG might say that the GPL licensed it to distribute Linux, but SCOG did not satisfy the conditions of the license, so it did not have permission to distribute.
..
Your nitpicking about "work based on the Program" is misleading. The definition is before the colon. After the colon comes "that is", which clearly indicates an explanation, not an alternate definition. The explanation is just a short description of how "work based on the Program" interacts with the copyright law definition of derivative work, but you mistakenly take it for an attempt to redefine "derivative work".
..
Your argument on notice is over-simplified and incomplete. The GPL does not give anyone permission to remove the copyright notices in a GPL'd program, so anyone that does it is violating copyright law and distributing the illegal program also violates that law. Anyone who knows that the program is illegal has no right to receive it. Anyone who does not know still violates copyright law by using it, but may escape damages other than being forced to stop. Anyone who distributes the illegal program will have to show due diligence in determining what license he or she had to do it.
..
Lawyers can argue anything they want. When they can't pound on the facts or the law, they pound on the table. (For example, look at SCOG).
..
Any lawyer that take an unbiased look at the GPL will realize that it is a license that gives conditional permissions. If you don't obey the conditions, you don't get the permissions. No contract.
..
It is also possible to look at the GPL as containing a public offer that can be accepted by doing something contained in the offer. There is no contract, but if you do that thing, you accept the offer and create a contract. There is no practical difference in these viewpoints.
..
Since companies like IBM and HP spend billions of dollars on GPL'd programs, they, as I, must think that GPL2 is steel plated and has no significant bugs. The clay piggy banks have not be used for more than a decade. All GPL3 has to do is to answer the nitpicking, and add additional armor in the form of discouraging patent predators.
Re: A Consumer's Review of the General Public License
Posted by: nonsense 2004-07-20 21:35:31 In reply to: Phil Albert
<quote>For one thing, it was written by programmers, not intellectual property lawyers.</quote>
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Have you heard of Eben Moglen? Didn't you know the FSF has lawyers?
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<quote>If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout.</quote>
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They did - the passage you were referring to is exactly that. The *intention* of the passage is perfectly clear - they simply intend the phrase "based on the Program" to encompass derivative works (as defined by copyright law).
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Why pin a meaning like that down to a potentially flawed definition when, as you say, there is a great deal of doctrine on the subject? Firstly, you couldn't possibly hope to encompass all of the doctrine in a short definition. Secondly, by pinning it down, you open the possibility of creative lawyers getting around it.
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<quote>subtle problems -- such as the lack of notice requirement for downstream users </quote>
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Not a problem at all - users don't even need to know about the GPL. See section zero: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted...".
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<quote>a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL.</quote>
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That's just so wrong. If I receive some of Microsoft's code without any attached license do you really think the court would conclude that it's in the public domain for me to do with as I please? Of course not. You appear to be confusing 'open source' with 'public domain'. The base position is that if someone received copyrighted work (without any accompanying license) then they are simply not permitted to copy/modify it. That's true whether the code is Microsoft's code or my "hello world" code. The fact that I release my "hello world" code under the GPL does not alter the fact that it's a copyrighted work.
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<quote>Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor)./quote>
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They might. It shouldn't take them long to realise, however, that the GPL merely allows you to do certain things that, under copyright law, you would not otherwise have the right to do. Read paragraph 5 - it's perfectly clear.
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<quote>It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee's actions even more than copyright law would.</quote>
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Isn't that's what EULAs are for? The GPL isn't an EULA. Why would the GPL even want to do that?! The GPL grants you rights that you otherwise would not have.
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<quote>However, since the GPL itself is not freely licensed, we have to wait for the manufacturer to release version 3 before the bugs can be fixed. </quote>
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No you don't. You can write your own implementation of it from scratch, including whatever modifications you like. In fact, you could even turn it into an EULA (it seems that's what you'd prefer). You're a lawyer, so you shouldn't have much trouble doing that.
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<quote>The way the open-source world is evolving, my guess is that clay piggy banks are not going to cut it anymore.</quote>
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Well, why don't you ask the FSF how many parties have backed down when threatened with breach of the GPL. I'm not aware of the GPL ever being successfully challenged. Are you? I guess it isn't a clay piggy bank. It seems it is steel plated and flight rated after all.
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Do you understand the GPL at all? I'm a consumer and I didn't find your review very helpful at all.
--
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Have you heard of Eben Moglen? Didn't you know the FSF has lawyers?
-
<quote>If I were writing this license, I would include a definitions section that exactly defines everything I need and ensures that usage is consistent throughout.</quote>
-
They did - the passage you were referring to is exactly that. The *intention* of the passage is perfectly clear - they simply intend the phrase "based on the Program" to encompass derivative works (as defined by copyright law).
-
Why pin a meaning like that down to a potentially flawed definition when, as you say, there is a great deal of doctrine on the subject? Firstly, you couldn't possibly hope to encompass all of the doctrine in a short definition. Secondly, by pinning it down, you open the possibility of creative lawyers getting around it.
-
<quote>subtle problems -- such as the lack of notice requirement for downstream users </quote>
-
Not a problem at all - users don't even need to know about the GPL. See section zero: "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted...".
-
<quote>a court might construe that if the recipient had no notice of the actual license terms, but understood the software to be open source, they might have an implied license to use the software without the copyleft provisions of the GPL.</quote>
-
That's just so wrong. If I receive some of Microsoft's code without any attached license do you really think the court would conclude that it's in the public domain for me to do with as I please? Of course not. You appear to be confusing 'open source' with 'public domain'. The base position is that if someone received copyrighted work (without any accompanying license) then they are simply not permitted to copy/modify it. That's true whether the code is Microsoft's code or my "hello world" code. The fact that I release my "hello world" code under the GPL does not alter the fact that it's a copyrighted work.
-
<quote>Lawyers might also argue that it is unclear whether the GPL is based in contract or property (that is, whether a licensee is bound because the licensee agreed to the provisions of the GPL, or a licensee is the owner of some limited property right granted to him or her by the licensor)./quote>
-
They might. It shouldn't take them long to realise, however, that the GPL merely allows you to do certain things that, under copyright law, you would not otherwise have the right to do. Read paragraph 5 - it's perfectly clear.
-
<quote>It is also not clear if the GPL intends to bind the licensee beyond the scope of copyrights, restricting the licensee's actions even more than copyright law would.</quote>
-
Isn't that's what EULAs are for? The GPL isn't an EULA. Why would the GPL even want to do that?! The GPL grants you rights that you otherwise would not have.
-
<quote>However, since the GPL itself is not freely licensed, we have to wait for the manufacturer to release version 3 before the bugs can be fixed. </quote>
-
No you don't. You can write your own implementation of it from scratch, including whatever modifications you like. In fact, you could even turn it into an EULA (it seems that's what you'd prefer). You're a lawyer, so you shouldn't have much trouble doing that.
-
<quote>The way the open-source world is evolving, my guess is that clay piggy banks are not going to cut it anymore.</quote>
-
Well, why don't you ask the FSF how many parties have backed down when threatened with breach of the GPL. I'm not aware of the GPL ever being successfully challenged. Are you? I guess it isn't a clay piggy bank. It seems it is steel plated and flight rated after all.
-
Do you understand the GPL at all? I'm a consumer and I didn't find your review very helpful at all.
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