A must read for license law

[John Cowan]

daniel wallace scripsit:

> The FSF analogy of "public license" and the GPL is really what I was 
> referring to. 

I believe that the term "public license" in the GPL and other licenses
refers to the fact that everyone -- every member of the public -- is a
licensee.

> The first paragraph quoted from the FSF describes the legislative 
> "malefaction" (malum prohibitum) power to restrain what would be legal 
> at common law.

The status of copyright at common law is vexed, applied (if at all)
only to unpublished works, and has been utterly moot since 1976, which
almost certainly predates every piece of open-source software.  So nobody
knows if copyright infringement is a classical malum prohibitum or not.

> This confusion gives rise to the myth that a copyright license is not
> a contract. Even a "bare license" is a unilateral contract and any
> dispute in a court of law will be examined first under state common
> law of contract prior to evaluating federal copyright claims.

Some open-source licenses, like the OSL and AFL, are indeed unilateral
contracts, but the GPL is not; it is a voluntary (though conditional)
derogation by the copyright owner of his sovereignty over the copyright.
Its nearest conventional analogue is a license to enter on land.  If I
license you to cross my property provided you do no harm, you need not
"accept" anything in order not to be a trespasser, and if you have no such
license or do do harm (absent other circumstances), you are a trespasser,
period, at common law (no question of malum prohibitum vs. in se here!)

> copyright license may give rise to promissory estoppel claims.

The whole point of promissory estoppel, as I understand it, is that you
are in certain circumstances equitably entitled to rely on promises
even if they do not amount to contractual obligations.

> In a few weeks or months everything released under the GPL --- ~ 80%
> of open source code will be in a state of quasi-public domain due to
> promissory estoppel.

Pooh.

> 114.
>   SCO made a clear and unambiguous promise to IBM and
> others that SCO would copy, modify or distribute programs
> distributed by IBM and others under the GPL only on the
> terms set out in the GPL; and would not assert rights to
> programs distributed by SCO under the GPL except on the
> terms set out in the GPL.

This is as much as to say that SCO (as Caldera) issued software under
the GPL, and is now equitably estopped from revoking its license just
when it happens to be convenient.  This covers any cases where SCO was
the original author of the GPLed code.

The FLOSS world has always treated its public licenses as irrevocable,
though it tolerates new versions being issued under incompatible or
even proprietary licenses.  Anyone who tries to revoke a public license
outright with retroactive force is acting against community expectations,
and IBM claims that this behavior not happening, when others have counted
on it, is equitably estopped.

Of course there is no question of common law here.

-- 
There is / One art                      John Cowan <jcowan at reutershealth.com>
No more / No less                       http://www.reutershealth.com
To do / All things                      http://www.ccil.org/~cowan
With art- / Lessness                     -- Piet Hein
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