(OT) - Major Blow to Copyleft Theory

Chris Travers chris at metatrontech.com
Mon Aug 27 16:32:57 UTC 2007

Rick Moen wrote:
> Quoting Mahesh T. Pai (paivakil at yahoo.co.in):
>> Alexander Terekhov said on Fri, Aug 24, 2007 at 03:36:09PM +0200,:
>>  > The first point is important because the Free Software Foundation
>>  > and some lawyers have taken the position that open source licenses
>>  > are not contracts. They have good reasons for wishing to avoid some
>>  > contract formalities, but this position has complicated discussions
>>  > about the enforceability and remedies for open source licenses.
>> As I understand the FSF, they are clear in saying that the GPL is not
>> a contract. I am not sure what I am missing, but where does FSF say
>> that ``all open source licenses are not contracts''?
> Quite.
> Further, I didn't see Alexander Terkehov's posting, but gather that it
> concerns the California JMRI case.  Based on the above quotation,
> Terekhov has fundamentally misrepresented the case -- relying in part on
> selective quotation from Mark Radcliffe's blog.
The problem with the GPL in particular (moreso than the artistic 
license) is that it is not a mere gift.  THere are expectations of 
return (in the form of source code of derivative works).  Thus even if 
the case was wrongly decided, one could argue that an exchange of 
promises is made wrt the GPL.  IANAL though.

Of course, with the GPL though it doesn't effectively matter.  You might 
get monetary damages the first time around.  But then the GPL has been 
terminated by any reading of it I can give, and therefore subsequent 
distribution is clearly copyright infringement.  So while I sympathize 
with Alexander's general POV regarding the FSF, I think he is incorrect 
that this is a major blow to copyleft theory. 

Major blows?  I would think Gates v Bando (1993) comes to mind as a 
better example.  Some on this list have suggested that the Gates test 
amounts to permission to ignore copyleft licenses.  I wouldn't go that 
far, but standard copyleft interpretations of derivative works seem at 
odds with this case.  In short it *substantially limits* the scope of 
copyright and hence copyleft.
>   LWN subscriber "bojan"
> seems to have the best critique:
> http://lwn.net/Articles/246791/
> In any event, Radcliffe cites cogent reasons why Judge White's decision
> is simply wrong -- as, indeed, it should be obvious that stripping the
> copyright holders' names / copyright notices from a creative work is a
> straightforward violation of the Copyright Act, anywhere in the USA,
> irrespective of contract concerns.
I am inclined to agree with this analysis even if it doesn't apply to 
copyleft licenses (the Artistic License seems to be a very restricted 
form of copyright permission with no expectation of gain from the 
licenses itself).  I believe that the judge may have been confused over 
the fact that most copyright licenses amount to contracts (you may 
distribute this in exchange for....) and that this may be an exception, 
but IANAL.

Again, nothing in the above paragraph suggests that the GPL is *not* a 
contract (and indeed it does look like an exchange of promises-- you may 
do this in exchange for releasing your source code if you redistribute 
so I can have access to it).  But then, as I have stated elsewhere it 
really doesn't seem to matter since a violation of the GPL terminates it 
so subsequent infringement is infringement only.

FOr those who raise questions of "acceptance" I would suggest that, 
though IANAL, they look up the term "adherence contract."

Best Wishes,
Chris Travers
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