A new approach is needed

John Cowan jcowan at reutershealth.com
Mon Aug 30 18:50:10 UTC 2004

dlw scripsit:

> Current open source licenses are under attack in the legal world.

They are also being ably and vigorously defended.

> The crux of Professor Moglen's argument is that the "in rem" property
> rights of the owner of a copyright empower the owner to place
> restrictions on the copyright absent any involvement with contract
> law --- which involves "in persona" personal rights distinct from
> property rights.

"In personam", please.  If you are going to use technical terms,
do try to get them right.  (Priscian's head shrinks, cracks.)

> Any language used by the owner of the patent or any conduct on
> his part exhibited to another from which that other may properly
> infer that the owner consents to his use of the patent in making or
> using it, or selling it, upon which the other acts, constitutes
> a license and a defense to an action . . . . De Forest Radio
> Tel. Co. v. United States, 273 U.S.  236, 241 (1927). When warranted
> by such a course of conduct, the law implies a license. Devices
> for Medicine, Inc. v.  Boehl, 822 F.2d 1062, 1068, 3 USPQ2d 1288,
> 1293-94 (Fed.  Cir. 1987). Whether express or implied, a license
> is a contract 'governed by ordinary principles of state contract
> law.' Power Lift, Inc. v. Weatherford Nipple-Up Sys., Inc.,

Which is as much to say that a patent license is going to be treated
as a unilateral contract (licensor makes promises to licensee), even if
consideration has to be presumed rather than proved.  This has nothing
to do with Moglen's claim that the GNU GPL does not involve any promises
by the licensee to the licensor, as indeed it plainly does not.

Courts like contract law, because it's fairly well-developed and has
well-understood principles.  When they run up against things that pass
the duck test, they are inclined to treat them as ducks in the full sense.

> "   [a] Breach of Contract. Adverting first to contract rights,
> an author's right to royalties under a publication contract may be
> conditioned upon the publisher's acts of reproduction and distribution
> of copies of the work, but there is also another crucial act that stands
> as a condition to the publisher's liability: the publisher's promise to
> pay the stated royalty. Without a promise there is no contract, while
> a promise on the part of one who engages in unlicensed reproduction
> or distribution is not required in order to constitute him a copyright
> infringer. Certainly, pre-emption should be denied, to the extent that
> a breach of contract cause of action alleges more than reproduction,
> adaptation, etc. simplicter of a copyrighted work,"

This says that what is properly a suit for infringement (and as such
a federal matter) can't be brought under cover of a contract dispute
(a state matter).  It has nothing to do with the facts of the GPL.

> A second problem is the nature of a contract that attempts successive
> assignments of rights or delegations of duties.

The GPL does nothing of the kind.  Each licensor under the GPL
separately licenses each licensee (that is to say, everyone),
and lifts the restrictions that licensees would otherwise have
by reason of copyright law.

> Several thousand open source coders "employed" by one benevolent
> foundation is easier for me to accept than is a software distribution
> that is released with several thousand copyright party attributions
> named in several thousand files.

Luckily, it doesn't much matter what you accept.

He played King Lear as though           John Cowan <jcowan at reutershealth.com>
someone had played the ace.             http://www.ccil.org/~cowan
        --Eugene Field                  http://www.reutershealth.com

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