Wired Article -- Nullifying a GPL?
Dennis E. Hamilton
infonuovo at email.com
Thu Mar 30 20:12:37 UTC 2000
I looked at what I could find on Wired, thanks to the Slashdot discussion
and its links.
1. UNRESOLVED QUESTIONS?
One problem I notice is that we don't have a finding with regard to the
validity of the copyright by the original distributors of cphack. Part of
the Mattel claim was that this work was the product of an infringement.
I gather that the parties have settled, but I don't know what has been
stipulated concerning the validity of the cphack copyright and therefore any
purported licensing of it. The cited property transfer is prudently
noncommittal on that score. I would say that leaves much of the "fiasco" in
place, depending on what the judge makes of all of this.
I have neither information nor further opinion about the actual case.
2. HEY BUDDY, WANNA BUY A WATCH? GENUINE ROLEX!
I do see an interesting question over what happens when any published work
is tainted by a problem over the ownership of the intellectual property
embodied therein. I've never heard of anything that will insulate a
recipient of software from the consequences of that material not being the
property of the supplier/license-writer. I've seen contracts that held a
purchaser harmless from any intellectual property issue, but they were
written by suppliers who could be reasonably counted on to perform, and the
monetary considerations were considerable (e.g., purchase of large mainframe
computer systems). I don't notice anything about that in the 7-page
software EULA I happen to have in front of me. I do notice that section 7
of the GPL (Version 2, June 1991) does have language which may be pertinent
and which may have bearing in the Mattel-cphack case too.
The outcomes tend to be limited to what is practical. But willful
redistribution of a tainted work (e.g., copies of a believed-to-be-pirated
audio recording or electronic novel) is not smart behavior, any more than is
quickly reselling an automobile that you purchased with the strong suspicion
that it was stolen. Or hastily spending that $20 bill you were given that
you are pretty sure is counterfeit. So, "do you feel lucky, ...?"
I have no basis for determining or assuming that the GPL-ing of cphack has
been nullified or made void. I do think we are seeing an area where
trustworthy sources become important. In particular, the presence (or in
this case, simple mention) of the GPL in material, as for any license,
depends for its authority on the legitimacy of the claim of property right
on which the license is founded.
Of course, we will trust these things. But I think it is important to
understand that it is all about trust relationships. Sometimes, these don't
work out, and we are left with a challenge to behave responsibly and
From: Chip Salzenberg [mailto:chip at perlsupport.com]On Behalf Of Chip
Sent: Thursday, March 30, 2000 10:16
To: W . Yip
Cc: license-discuss at opensource.org
Subject: Re: Wired Article on the GPL
According to W . Yip:
> On Wed, 29 Mar 2000 15:49:49 -0800, Chip Salzenberg <chip at valinux.com>
> >By releasing under the GPL, the original authors surrendered their
> >right to control GPL-compatible copying. Having surrendered that
> >right, the original authors are not able to transfer it.
> Mattel's lawyers would certainly disagree with you on this one. They
> probably would stand by their contract and claim that copyright has been
> assigned to them.
Oh, I won't argue that point. Mattel certainly owns the copyright.
But I would consider it obvious that, once I have been granted me a
license to copy, neither the original copyright holder nor his assigns
have the authority to stop me. In other words, the license adheres to
the code, not the author.
Frankly, I'm stunned that Mattel is even bringing this argument.
They (or the department in question) must be in a full-blown panic.
Chip Salzenberg - a.k.a. - <chip at valinux.com>
"I wanted to play hopscotch with the impenetrable mystery of existence,
but he stepped in a wormhole and had to go in early." // MST3K
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