Question regarding a new local license approach

Walter van Holst walter.van.holst at
Mon Mar 14 20:45:05 UTC 2005

On Fri, 11 Mar 2005 14:28:24 -0500, Forrest J. Cavalier III
<mibsoft at> >

> I'm not saying that a court is ever empowered to decide a case
> based on anything but statute and case law. I'm thinking
> that there will be enough legal scholars willing and able
> to defend the GPL against invalidation everytime it comes
> up, in any jurisdiction, even if the defendent doesn't
> have deep pockets.

You probably are right on this one. Although I am not a member of the
bar here (having a law degree does not necessarily result in that), I
would be more than willing to contribute to such a defense and I am
rather sure several members of the bar would be willing to defend the
GPL pro bono. The issue is not so much about organising enforcement of
the GPL, but much more what the court would decide on certain aspects
of the GPL (which I will address further on in this posting).

> The GPL is universal because it is based on copyright law
> enshrined in Berne.  It is my understanding that if you
> don't sign with Berne, then your citizens won't be able to
> get any copyright protection when they publish outside your own
> country.  That's a very big stick.

That is a very big stick indeed, as far as the redistribution of
GPL'ed code is concerned, because you can base any enforcement of the
GPL on copyright law. The Sitecom case is a pretty good example of
that, although highly controversial among German legal scholars.
Copyright law around the law provides the minimum protections to
copyright holders as required by the Berne Convention. However, it
does not govern how the GPL as an EULA can become a legally binding
contract whatsoever. The Berne Convention does not say anything about
the maximum protection copyright law provides to authors either, so it
leaves you in the cold as soon as an author from a continental
European jurisdiction retracts his or her commitment to let other
people change his or her code basing such claims on personality rights
which are inalienable in those jurisdictions. It also leaves you in
the cold as soon as someone tries to claim damages in such a

Mind you, all sorts of issues that I expect to result in court
decisions that will be pretty much in line with the GPL, but not based
on the GPL in verbatim, but much more based on 'criteria of
reasonableness and fairness' and the 'principle of protection of legal
interests'. Those criteria are not quite predictable beforehand and
you don't want to need a court case for that.

> I wonder what other FOSS licenses would get the kind of legal
> backing the GPL would.  They aren't as well studied, and the
> implications are not as severe as losing the ability to
> use Linux in your country.

I wouldn't think so. First of all, any court decision on the
enforcability of any FOSS license is highly unlikely to result in a
loss of the ability to use the software involved anyway. It is more
likely to result in a grinding halt of the development of any FOSS
software in such a country. Secondly, even if you could lose that
ability, the impact of losing the ability to use any BSD, MIT or
Apache licensed software would be equally tremendous. It would
essentially cripple all internet infrastructure in such a country.



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