Problems in Open Source Licensing

[Jeremy Malcolm]

On Sun, 16 Feb 2003 05:48:48 -0800
"C. Hamacher" <chamacher at kelora.org> wrote:

> You write a very detailed article, but it seems you have a few basic 
> misconceptions.

Rather a bold statement from you but I beg to disagree with it. :-)

> I don't think it's possible for you to "revoke" an offer to GPL your 
> code, once released. If you did try, it would be an admission to 
> intentionaly and knowing copyright violation (assuming you're not 
> the original author and you haven't incorporated anyone else's 
> patched into your program). There's a good chance the court would 
> support the right of anyone who has a pre-change copy of the code to 
> take advantage of your offer.

I'm not entirely clear on what you're saying, but it seems you are
talking about software that has already been released by its original
author under the GPL, and that I have modified.  In that case, it would
be a breach of copyright by me to release my modifications under any
other terms than the GPL.  This is a complicating factor, so let's take
the simpler case of releasing my own code under the GPL.  Do you see
anything that would prevent me from withdrawing those licensing terms? 
Short of contract or estoppel, and assuming that I adequately
communicate the revocation of licence to my users, how can I be
prevented from changing the licensing terms whenever and however I like?

> 2) That click-through (after-sale) licenses are in any way related 
> to extra-permission (GPL type) licenses.
> 
> In the first, you want the courts to uphold your permission to 
> violate someone's first-sale rights by tacking on restrictions after 
> contract negotiations. The GPL and other software licenses are 
> completely seperate from sale, even if you bought the software. 
> There are *no* restrictions on this kind of license that aren't on 
> all contracts (unconscionable terms, etc).

"Click-through" doesn't mean "after-sale".  The sale is the click. 
Granted, that won't always be the case, but to assume that it won't be
is again to introduce an unnecessary complicating factor.  In principle,
the relevant difference between GPL and click-wrap licences is not
whether they contains "restrictions" or "extra-permission" (whatever
that means), it is whether they are contractual or non-contractual. 

> 3) Licenses can only impose copyright-type restrictions.
> 
> Licenses you impose *any* restrictions under the sun. If I license 
> my code with the restriction that you must get a tattoo of it on 
> your arm, you are contractually obliged to follow through with that. 

If you *are* contractually obliged, then yes.  Otherwise, I disagree. 
Licence conditions have to be reasonable, contract conditions don't.  My
authority for this is the case I cited in the article.  I admit that
this question has not been adequately judicially examined, but it seems
correct to me that a different test should apply in the case where the
parties have entered into a contract than in the case where one of them
simply permits the other to do an act that would otherwise be unlawful.

> 4) The term "or future versions of the GPL" are a change in 
> licensing if a new version comes out.
> 
> The license at this point is merely an offer. "If you wish to use 
> the code with these restrictions and obligations, I will allow it. 
> If these terms aren't acceptable/desirable, I will also accept the 
> terms as described by the FSF, contact them for details."

If they have accepted that "offer" (I use the term loosely, since we are
not talking about a contract) prior to the change of licence terms, then
when the new terms become available for the licensee to use in place of
the original terms, that is by definition a change in the terms under
which the software is licensed.  The change is sanctioned in advance by
the terms of the old licence, but that doesn't mean that the terms
haven't changed.

> The issue of original software released under the GPL has also been 
> questioned with claims that the author gets nothing from the deal. 
> There have been cases where people have agreed to not take payment 
> (remain "amateur") in trade for being allowed to compete in a 
> contest. (The olympics and others.) The GPL could be seen to be 
> related. You trade your obligation to offer the software under a 
> public license for the publicity that comes from being reviewed or 
> having it used in a larger project. It can be shown conclusively 
> that being a famous open source author leads to being hired, thus it 
> can be shown that releasing GPLed software has value to the author.

But the value doesn't flow from the licensee.  Consideration has to flow
from the other party to the contract.

-- 
JEREMY MALCOLM <Jeremy at Malcolm.id.au> Personal: http://www.malcolm.id.au
Providing online networks of Australian lawyers (http://www.ilaw.com.au)
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