The position RMS takes...

John Cowan jcowan at
Thu Mar 30 15:03:57 UTC 2000

"W. Yip" wrote:

> 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]

The U.S. Copyright Act, at least, uses the term "transfer of copyright"
for this case.  So there are transfers of copyright (former copyright owner
retains no interest), which must be in writing and should be recorded at
the Copyright Office; and there are copyright licenses, which need no writing
and are not recorded there.

> I believe M$ licenses to be non-exclusive.

They are certainly non-exclusive.  But my point is that Microsoft EULAs are
not *copyright* licenses.  They grant none of the rights of a copyright owner.
They are instead analogous to the contract of sale by which one buys a book
or other copyrighted work; you get the object but not any part of the
copyright rights.  The EULA, however, is more restrictive than a typical
book-sale contract: it severely limits what you can do with the program.
> >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?

No.  Suppose that Alice issues an original work under the GPL.  Bob then issues
a derivative of Alice's work, necessarily also under the GPL.  Carol gets a copy
of Bob's work.

Carol receives a license from Bob for the derivative work, and also for Bob's
original contributions (supposing that they are of sufficient originality, etc.
to be copyrightable).  She also receives a license from Alice.

When Alice licensed the work under the GPL, she said that anyone in Carol's
position would receive a license to the work.  If Alice tried to renege by
suing Carol for infringement, Carol could rely in good faith on the GPL.

Until the judge says no, that is.  Lawyers are fond of saying that the
law is whatever the judge says; but this does not help judges much, who
are sworn to do justice according to the law.
> 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.

Fair enough.  AFAIK no one has ever won a warranty-of-fitness lawsuit
against a software developer in this country.  Anyone know of a case?

"If builders built buildings the way some programmers write programs, then
the first woodpecker that came along would destroy civilization." 
	--Gerald Weinberg

> >> 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?

Provided they amount to an original work of authorship (they have to pass
the originality test and the form/content merger test, at least over here), yes.
But I was considering the case where B merely distributes A's work unchanged.
> >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.

Other than in a case like the Mattel case, where the copyright owner did not
issue the GPL, this is unlikely to occur.  The genuine ground of dispute
between A and C would be whether C complied in good faith with the GPL's
terms.  For typical Cs, there is simply no issue, since they merely use
A's program without copying, distributing, or making derivative works.

> Concurrent licenses:
> A --> C ('automatic')
> B --> C (sublicensing a derivative work?)

Merely licensing it.  Copyright in the derivative work as a whole belongs to B,
not merely copyright in the changes (which may not even exist).
If the original work was under the GPL, of course, B cannot distribute his
derivative work (which necessarily includes the original) except under the
> >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.

So you think the condition is void for impossibility?

> 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.

Starts to look like a contractual rather than a bare license here. 

> 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.

"The first thing you learn in a lawin' family is that there ain't
no definite answers to anything."
	-- Harper Lee, _To Kill A Mockingbird_

(IANAL, but my father was.)


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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