(OT) - Major Blow to Copyleft Theory

Chris Travers chris at metatrontech.com
Mon Aug 27 17:01:47 UTC 2007

Alexander Terekhov wrote:
> "I'm not sure how the author of the article concluded that this
> licence is a contract."
> says it all.

Rick is going to be surprised that I will defend him in this, I am sure 
;-).  Alexander, I think you are misreading some things and that this 
ruling could be *far* worse than it appears.  I hope that it is reversed 
on appeal.

In my view, the large issue with the Artistic License (and the BSD 
License, and others) is that, unlike the *vast majority* of copyright 
licenses, there is no expectation on return of any sort from the license 
itself.  Thus while the *vast majority* of copyright licenses provide an 
exchange of promises, some do not.  It is hard therefore to see how this 
license in particular could qualify as a contract (it is far easier to 
see how the GPL is a contract, for example).

Secondly, even if the Artistic License is a gift, you still have the 
question as to copyright infringement and copyright law as it exists 
outside the bounds of that gift.  Again, IANAL, but....

Although I find the case quite interesting, I would argue that it is 
only tangentally related to copyleft itself.  As far as "major blows" go 
it is nowhere in the neighborhood of Gates v. Bando (1993) which 
provided an analysis method for determining when software is in fact a 
derivative work (and surprise, this has almost nothing in common with 
the FSF's view).
> The court stated in bold that "Plaintiff's Claim Sounds in Contract,
> Not Copyright."
I actually disagree with the court here.    However, since this is a 
question of remedy only, I don't think it matters that much, provided 
that the remedy is equitable.  Again, unlike the Artistic License, the 
GPL terminates on violation, preventing this from being a problem on the 
same magnitude.

The problem seems to me to be limited to non-reciprocal licenses (since 
reciprocity would seem to create a contract anyway).
> And further elaborated "The nonexclusive license is subject to various
> conditions, including the licensee's proper attribution of the source
> of the subject files. However, implicit in a nonexclusive license is
> the promise not to sue for copyright infringement. See In re CFLC,
> Inc., 89 F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio
> Telephone Co. v. United States, 273 U.S. 236, 242 (1927) (finding that
> a nonexclusive license is, in essence, a mere waiver of the right to
> sue the licensee for infringement); see also Effects Associates, Inc.
> v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting
> of a nonexclusive license may be oral or by conduct and a such a
> license creates a waiver of the right to sue in copyright, but not the
> right to sue for breach of contract)."
This seems to me to be somewhat scary becasue this means that a BSDL 
would no longer be any sort of copyright license.  This seems to weaken 
more permissive licenses far more than copyleft ones (since they are 
more obviously contracts).

In short, the court seems to be saying that you *cannot sue* for 
copyright infringement under an open source license because this 
includes an implicit waiver not to sue for such.  Therefore, the only 
recourse can be contract.  Now, if the artistic license is not a valid 
contract, then that would effectively make it meaningless, would it not?

Would this not effectively render any non-contract OSS licenses to be 
useless?  (The GPL as a contract would still be safe ;-) ).
> To armed man John Cowan: see the reference to De Forest? Let the poor
> judge know that he is unarmed man. :-)
This doesn't say that the Artistic License is a contract, just that it 
precludes the right to sue for copyright infringement.  That, and 
nothing else, seems incredibly scary to me.

Best Wishes,
Chris Travers

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