The position RMS takes...

John Cowan jcowan at
Tue Mar 28 18:59:35 UTC 2000

"W. Yip" wrote:

> 1) The (i) nature and (ii) extent of the terms/permissions in OSS licenses.
> OSS Licenses are different from conventional licenses in that they
> (i) place *no* limits on the copying, and (ii) regulate/impose rules on
> subsequent sublicenses by the licensee and (iii) seem to offer permissions
> to *anyone* [unilaterally?].

I think that (ii) conventional licenses do regulate subsequent sublicenses: they
forbid them. I agree (iii) that the permissions of an open-source/free license
are unilateral even though conditional.
> 2) The presence of contractual elements mixed with license elements. The
> former comprises *obligations* as a result of agreement, while the latter
> represents *permissions*. I find the resulting mix very difficult to
> ascertain or separate.

I think it is the proprietary licenses that have contractual elements, and
indeed are nothing but contracts.
> [my proposition] The extremist position RMS can be consistent with
> intellectual property. In short, I understand RMS to be against restrictive
> (closed) licensing, but NOT against copyright.

He might also be against copyright, but willing to use it, as a fait
accompli, to achieve his larger purposes.  It is not inconsistent to
seek to be elected President on a platform of abolishing the Presidency, e.g.
But this is speculative: I don't know RMS's views on copyright as such,
nor even if he has any.
> Faced with a contractual
> agreement, and the obligation (from the licensor) that a licensee may
> expect therewith, it thus appears possible to 'own' a license as property.

Most of the EULAs I have read disclaim all obligations on the part of the
licensor except that of replacing defective media, and forbid transfers of the program to boot.  So even if the license is property, it is fairly worthless

> Thus, I
> would challenge the wording of the OSD on the grounds that it seems to
> claim that rights subsist 'in rem' , that is, in the program itself.

I think clause 7 (to which I suppose you refer) *is* badly drafted.
However, if we read "The rights over the program provided by the license
must be licensed to all" etc., then we get the same effect.  An OSD-compliant
license remains in personam, it is simply that the "persons" in question
must extend to whomever acquires the program lawfully.

Since on my view open-source licenses consist of mere permissions, not
a contract, this happens automatically, since a licensee is anyone who wants to be.

 If the
> OSD were correct, the 'rights' or 'permission to use' follows the program
> wherever it may go, without any need for contractual agreement or execution
> of license involving persons. But I contend surely this is not possible,
> because it GOES AGAINST the very nature of a license under law [that it is
> *personal*].

Clause 7 of the OSD simply requires that OSD-compliant licenses automatically extend
to anyone who has a lawfully acquired copy and wishes to exercise rights (of
distribution, copying, making derivative works) under the license.  A license that
restricts who can be a licensee is not OSD-compliant.  It may be a perfectly good
copyright license in law, but it is unfree.

> In so doing, we would evade the trouble of licenses.

What trouble?

> And what of the grounds for suing? I have stressed the phrase 'violation of
> GPL' is troublesome because it is ambiguous. Would the grounds for a
> 'violation' suit be (i) copyright infringment, and/or (ii) contractual
> breach?

On my view, only (i).

> Do I see an
> automatic termination based on INTENTION here? It seems that one who
> 'attempt(s)' to copy WITH INTENT to violate the license will necessary lose
> the rights and thereafter infringe copyright by the said act of copying.

Seems sound to me, and generally in agreement with the tenor of the
(U.S.) Copyright Act.

>         ii. DISTRIBUTING, I see a paradox here. For distribution to
> infringe copyright, there must be 'issuing of copies to the public' [s.16
> of Copyright Designs and Patents Act 1988, UK] *without* prior permission.

"Permission" must certainly mean "permission to copy in such-and-such a way."
If I give you permission to make paperbound copies of my book and distribute
them, and you instead make hardbound copies of my book and distribute them
(to the detriment of my hardbound publishers), surely that distribution infringes?

> The GPL thus is paradoxical because it gives permission to distribute on
> the condition that THE SAME is made a condition. 

I don't understand what is paradoxical here.


Schlingt dreifach einen Kreis um dies! || John Cowan <jcowan at>
Schliesst euer Aug vor heiliger Schau,  ||
Denn er genoss vom Honig-Tau,           ||
Und trank die Milch vom Paradies.            -- Coleridge (tr. Politzer)

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