The position RMS takes...

[Rod Dixon, J.D., LL.M.]

I could quibble with a couple of points, but essentially I would say you
have it. (as far as my position, at least)

Rod Dixon, J.D., LL.M.
www.cyberspaces.org
rod at cyberspaces.org


> -----Original Message-----
> From: W. Yip [mailto:weng at yours.com]
> Sent: Tuesday, March 28, 2000 11:34 AM
> To: license-discuss at opensource.org
> Subject: The position RMS takes...
>
>
> Hi folks, I have attempted to consolidate my response to all your heartily
> given contributions in one piece. Please do go through it and tell me what
> you think of what I understand.
>
> On Fri, 24 Mar 2000 17:53:45 -0800, David Johnson <david at usermode.org>
> wrote:
> >On Fri, 24 Mar 2000, Mark Koek wrote:
> >> The GPL is dishonest, then?
> >I didn't say that! Nowhere within it does it say it is not property,
> >and plenty of places where it acknowledges it is guarding a piece of
> >intellectual property. But I hear a lot of statements to the effect
> >that "copyleft is not copyright" when in fact it is. People who don't
> >believe in information as property, but turn around and use the GPL
> >saying "no one owns it", are being dishonest, either with me or with
> >themselves. I can only assume that they are being unintentionally
> >dishonest.
>
> Copyleft is a method of copyright licensing. Thus 'Copyleft' is a
> method of
> licensing. OTOH, Copyright is a proprietary (meaning property) set of
> rights vested in the author (or employer) by law. These rights become
> property because they are made *exclusive* to the holder, meaning no one
> else can perform those listed acts without his permission. These are
> property rights because the author can exploit these rights for their
> market value by the transfer of these rights, whether through license or
> assignment.
>
> Legally, licensing represents permission to the person. In this, OSS
> licenses are no different from conventional licenses. However, the issue
> with Open Source licensing is compounded by the following:
>
> 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?].
>
> 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.
>
> >> RMS dislikes the notion of information as property.
> >Then it is curious to me why he considers his own works, as
> >demonstrated by his actions, to be intellectual property. Regardless of
> >whether he considers himself and the FSF as owners or as mere
> >caretakers, he has imposed upon his works terms and conditions that
> >only owners are allowed to make. He claims to be giving his software
> >away when in fact he is sharing instead.
>
> [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.
>
> I think his key ambiguity is not the word 'freedom' (which the adage
> 'liberty not price' explains) but instead, his (IMHO) clumsy use of the
> word 'proprietary'. If RMS clarifies this word, I believe his position can
> be consistent with my proposition stated above.
>
> I must stress the legal concept of what is 'proprietary' is very different
> from the word 'proprietary' defined in the GPL. For RMS and the GPL, a
> 'proprietary' license means any license that gives you less
> rights than the
> GPL. Thus, RMS' use of 'proprietary' relates  to extent(s) of
> *permission*.
> I surmise that RMS would accuse Microsoft of being 'proprietary' because
> Windows 2000 licenses are restrictive (as compared with GPL), and NOT
> because Microsoft owns copyright to Windows 2000. Such is the way RMS's
> construes the word 'proprietary'.
>
> OTOH, in law, it is the copyright that is 'proprietary', since it is
> copyright that you actually *own* as an author. The license
> represents your
> *permission* to what becomes lawful use. HOWEVER, the problem is the
> license potentially takes on a proprietary (property) nature when there is
> a contract (whether of service or sale). 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.
> Indeed, some in this forum have incisively indicated that the UCITA (which
> I am not familiar with) makes every software license a contract.
> As a result, we can see that the legal notion of a license has become
> *stretched*, and our problems really issue from this area.
>
> Some points I have been thinking
>
> a. Revocation - A *bare* license can be revoked anytime (eg. you ask guest
> in your house-party to leave, and their failure to do so would make them
> trespassers under law.) However, what about an OSS license? If an OSS
> License is a contractual license, what sort of damages would revocation
> bring, supposing revocation amounts to contractual breach? Would these be
> restitutive, or would they compensate expectation losses? How to quantify?
>
> b. 'Rights to software' - Are my 'rights' to the software given
> by contract
> (obligations following an agreement) or by license (permission to perform
> acts otherwise restricted by copyright?) A further question is whether
> these rights (i) are 'attached to the *program*' [cf. s.7 and s.8 of OSD]
> or whether these rights are attached to the *person*. Legally, a
> license is
> personal, whether it be a bare permission (from licensor to licensee) or a
> contractual agreement (two parties within privity of contract). 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. 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*]. Alternatively, I would claim that an OSS License is not a
> license at all, but a sui generis (new form) of right. If databases could
> be protected by the sui generis Database rights, why can't the Open Source
> community push for their own category of right? In so doing, we
> would evade
> of the trouble of licenses.
>
> >Is he being dishonest by doing this? In my opinion, yes...
> >> Personally, I like this kind of pragmatic approach. Change the system
> >> from within.
>
> Granted that it would be overly radical and even revolutionary in
> an active
> sense to go against copyright itself as information property, I would
> concur with the somewhat passive stance that RMS takes (it is passive in
> that it complies with Intellectual Property as far as legal mechanisms are
> concerned).
>
> >The "viral" clauses may do some small bit of changing the system, but
> >as a whole, Free Software sits squarely amidst the concepts of
> >property. Essentially, you can't do anything with anyone else's
> >property without their prior permission. Free Software gives you those
> >permissions. Does taking down one's "no trespassing" sign count as a
> >blow against real estate property? Hardly!
>
> This other dimension affects the formal/functional aspects of Open Source.
> One can argue that license like the GPL effectively 'licenses it ALL away'
> the protection given by copyright law. It seems that the only benefit of
> holding Copyright after adopting a GPL scheme is for the purpose of having
> the 'standing' necessary to sue.
>
> 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?
>
> A. Copyright Infringement
>
> Is it even possible to infringe with the GPL? Does distribution
> non-compliant with GPL terms invariably lead to infringment of copyright?
>
> Infringment may result as a result of
>
> 	i. COPYING, People commonly say the GPL restricts 'distribution'
> but NOT 'copying'. I think this is wrong. GPL s. 4 provides that 'any
> attempt otherwise (as expressly provided under this license) to copy...is
> void, and will automatically terminate your rights...'. 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.
>
> 	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.
> The GPL thus is paradoxical because it gives permission to distribute on
> the condition that THE SAME is made a condition. We are thus left with the
> question of whether such a condition precedent for distribution can
> effectively remove the permission in event of non-compliance, *in
> time* for
> there to be distribution *without* permission (thus amounting to
> infringment.)
>
> B. Breach Of A Contractual Obligation
>
> 'Violation' of license may also mean contractual breach. Im told UCITA
> finds the existence of a contract in every case of software licensing.
> 'Violation' seems thus more straightforward following UCITA in that it
> would be contractual breach.
>
> The UK, there remains the hurdle of (i) 'consideration' and (ii)
> 'intent to
> enter legal relations', before the existence of a contract may be found.
> This remains, at least in UK, a largely grey area for the courts to decide
> on the facts.
>
> Cheers.
>
>