The position RMS takes...

[W. Yip]

On Tue, 28 Mar 2000 13:59:35 -0500, John Cowan <jcowan at reutershealth.com>
wrote:
>"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. 

But what is the nature of this regulation? Is it a contractual obligation
or is it a condition precedent for the license permission? 

Please correct me if I am wrong, but I have the impression that only one
who owns the copyright can issue a license, hence in the case of
conventional licenses, the licensee cannot sublicense without express
permission from the licensor, since the licensee does not own the
copyright?

>I agree (iii) that the permissions of an open-source/free license
>are unilateral even though conditional.

In contract law, the concept of a unilateral offer is possible, but very
troublesome. The only possible check on this broad rule is the 'intent for
legal relations' rule. The most famous case is perhaps Carlil v. Carbolic
Smoke Ball Co.

I do not think a unilateral license is possible, but a unilateral offer
seems plausible. 

>> 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 primary difficulty with licenses is due to my understanding of it in
different branches of the law. The license *in general* is very different
from the license *in software*. In Land Law, for instance, the license can
be contractual (eg. renting an apartment), bare (eg. invitation to a house
party) or attached to a chose in action (eg. right to gather wood). But
such licenses have very different terms from a software license, largely
because these licenses deal with something *tangible*, unlike software that
is *intangible*.

You thus see why I argue for software licenses being recognised as
something altogether different. I do nto regard licensing to be an
appropriate mechanism for software protection at all. While it is common
for academics [such as Pam Samuelson]to attack copyright as inappropriate
for protecting software, few have questioned the notion of a license as
being appropriate as such.

>> 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
>property.

Not so if there is liability for defective software, particularly if the
software was sold as fit for a particular purpose.

There seems also considerable doubt as to whether a license is (i) a
contract of sale or (ii) a contract for service.

>> 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.

On the contrary, I think it was intentionally drafted this way by Perens to
directly challenge conventional understandings of copyright licensing. As I
said, this should get interesting if it ever reaches a court. The notion of
'rights attaching to a program' (as opposed to a person) is a novel one in
law, but is entirely consistent with the Open Source creed.

>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.

Is it still 'in personam' when the license is unilateral, made to all? I
question what practical difference there is between a unilateral license
and public domain.

'lawful acquisition' is another troublesome phrase. This seems circular
because what is 'lawful' almost certainly depends on the license being
valid?

>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.

There are two possibilities to the 'automatic license'. The license either 

(in a case where A[copyright holder] licenses to B licenses to C)

(i) automatically issues from the licensee(B) to the sublicensee(C)
(ii) automatically issues from the licensor (A) to the sublicensee (C)

The GPL claims (ii) following s. 6 'Each time you distribute...the
recipient automatically receives a license from the original licensor
....'. This is troublesome because A is entirely *outside* contractual
privity when B distributes to C? How does the automatic license emanate
from A who is entirely outside the picture where there is distribution from
B to C?

s.6 GPL entirely removes all control from A (original licensor and
copyright holder). This is because HIS ASSENT IS NO LONGER REQUIRED FOR
LICENSING. Thus there cannot be a contract between A and C, even though the
GPL mandates that A will give the license automatically. But there can be a
contract + license between B and C.

So there are potentially concurrent licenses involved in the GPL?

>>         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?

This example you give relates to limitations on the nature of copying and
not limitations on the mode of distribution. The GPL is concerned with the
latter and imposes no limits on the former.

>> 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.

Don't you find it circular that the GPL allows distribution but yet enables
infringement through distribution?

I'm not quite so sure myself, actually. It seems to me that one is either
given permission to distribute or not to distribute. Having been given
permission to distribute, I think it impossible to infringe copyright,
particularly if the license can be seen in isolation from the act of
distribution of a copy.


Cheers