The position RMS takes...

[W. Yip]

On Tue, 28 Mar 100 23:34:31 -0500 (EST), John Cowan <cowan at locke.ccil.org>
wrote:
>W. Yip scripsit:
>> 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?
>Conventional licenses are in no way non-exclusive copyright licenses.
>I have just read over several Microsoft EULAs, and I think they are typical.
>They expressly forbid copying, distributing, and the making of derivative
>works.  They also forbid many other acts while permitting others.

Just so as to ensure we are on the same wavelength, my understanding of
what is an 'exclusive license' is that '...with an exclusive license, the
licensee is given the right to perform specified acts to the exclusion of
all others *including the (copyright owner)'* [1]

I believe M$ licenses to be non-exclusive.

But I do see your point that Microsoft EULAs do not allow a licensee to
sublicense to others in any way.

>The GNU GPL, however, is a non-exclusive copyright license; as such,
>no one but the copyright owner can issue it, so there are no sublicenses.
>However, since the GPL is a general permission to everyone, there is no
>need for any sublicensing either.

When a licensee releases a derivate work under the GPL, is this not an act
of sublicensing?

>> Not so if there is liability for defective software, particularly if the
>> software was sold as fit for a particular purpose.
>Again, all licenses known to me (free and proprietary) disclaim all warranties,
>including those of merchantability and fitness for any purpose.

Yes. But disclaimers are generally not always effective to remove liability
in the courts. I'd say the terms of the contract and the general intent of
the document would be the main determinant as to liability in such cases.

However, I am unschooled in the intricacies of  disclaimers of liability
relating to software.

>> >> 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.
>I guess we won't know until Perens tells us.

Absolutely.

>> 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.
>Plenty.  An *unconditional* public license like "Anyone may copy, distribute,
>publicly perform, and make derivative works, without restriction" might be
>taken as a dedication to the public domain.  But the various free licenses
>are conditional: they permit anyone to copy, distribute, etc. etc. only
>if certain conditions are met.  It is not clear to me if these conditions are
>to be taken as conditions precedent or not.

I accept your distinction.

>> 'lawful acquisition' is another troublesome phrase. This seems circular
>> because what is 'lawful' almost certainly depends on the license being
>> valid?
>In part.  But acquisition of a copy by way of a crime, for example,
>would clearly not be lawful acquisition, so the circle can be broken.

Yes. This seems a grey area that can be argued several ways.

>> 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)
>Has to be (ii) for a non-exclusive copyright license, since B can't
>license anything by way of copyright.

But doesn't B own the copyright to the 'bits'  of the derivative work, ie.
his own additions to the source code?

>> 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?
>A is the copyright owner, the only one who can issue such a license.
>The GPL, when adopted by A as a license for his copyright property, says
>that C gets such a license.

Your position here seems to be

'What the GPL wants, the GPL gets'.

The reality is that the situation still depends on what a judge makes of
the GPL.

>> 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.
>
>A contract, certainly (e.g. the contract of sale between Red Hat and me
>for GPL-licensed software copyrighted by the FSF).  A license of some
>sort, perhaps.  But a non-exclusive copyright license?  No.
>Red Hat (B) has no right to issue such a license.  The FSF (A) licensed me
>(C) to copy/distribute/etc. as a consequence of Red Hat distributing to me.
>> So there are potentially concurrent licenses involved in the GPL?
>I'm not sure: concurrent in what way?

Concurrent licenses:

A --> C ('automatic') 

B --> C (sublicensing a derivative work?)

Where A=copyright holder
	B = first licensee
	C= subsequent licensee

>> Don't you find it circular that the GPL allows distribution but yet enables
>> infringement through distribution?
>Distribution that violates the condition is infringing.  Since you
>don't like my previous example, suppose I license you to distribute
>my book, on condition that you include an erratum slip with it.
>Distribution without the erratum slip would be infringing.

Yes. This is a great example. My submission is that it can be argued that
distribution is *absolute*, viz. either yes or no. If you say 'yes' to
distribution with a condition attached, I wish to challenge this by saying
that the condition precendent cannot work because it will *not* precede the
act of distribution. In your example, it is not possible for inclusion of
the erratum slip to precede the act of distribution. 

Contrast your example with mine. I license you to distribute my book, on
condition you wash my car for me. Thus, it is possible for your car-washing
to precede the act of distribution.

Its a tenuous argument, but I believe it is arguable.

>> 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.
>Why can't permission to distribute be conditional?

I'm not saying it cannot. I am merely arguing against it.

The law relating to software remains unstable, no matter how much those of
the legal disposition claim otherwise. There remains much to critique, and
there is no absolute answer.

[1] Bainbridge, JD "Software Licensing 2nd Edition" (1999) CLT Professional
Publishing