(OT) - Major Blow to Copyleft Theory

Chris Travers chris at metatrontech.com
Mon Aug 27 17:15:50 UTC 2007

John Cowan wrote:
> Arnoud Engelfriet scripsit:
>> It's the "if" bit that causes the trouble, in my view. Is it
>> possible to add conditions onto the permission without straying
>> into contract land? 
>> "You can enter my home if you promise not to smoke inside."
>> "You can enter my home but only until 5PM today."
>> "You can enter my home if you pay me $25."
>> "You can enter my home and stay for a month if you pay $300."
> Your third and fourth are open and shut contracts.  The first is the kind
> of thing that might stand or fall on technicalities about consideration.
> It's the second that approaches the realm of bare license.

For purposes of Copyleft discussions, I think the appropriate metaphor 
would be:
"You can enter my home if I can enter your home."  But again, this has 
nothing to do with the Artistic license (though your hypothetical 
license to an artistic house does ;-) ).

> If my house is an architectural masterpiece and I let people wander
> through the ground floor with a sign that says "SELF-GUIDED TOURS,
> 0900-1500 ONLY", is there really a civil-law contract with every member of
> the public, and am I in breach when I shut down the house one day at noon?
> I hope not, or I could be drowned in lawsuits and required (specific
> performance) to keep my house open till 1500 every day no matter what.

My own view is that this case, if allowed to stand, would pose a serious 
threat to more permissive, non-copyleft software licenses.  Copyleft 
licenses tend to be more obviously an exchange, and tend to have more 
contract safeties built in.

But if a permissive license always includes a waiver to sue for 
copyright infringement, and if the only recourse would be under 
breach-of-contract, then this would seem to me to be very problematic 
for BSDL authors, for example, if their copyright notices were removed.
>> If it's not a contract, then usually it's something like an easement.
> Well, there you go.  Does the above sign (absent prescription (adverse
> possession, to common lawyers)) actually create either contract or
> easement?  Or is it a mere waiver of property rights, revocable at will?
To what extent is the Artistic License, the BSDL, etc. revocable at 
will?  I, for one, hope they are not. :-)
> It's not uncommon in American cities, where a building has been built
> on pillars tall enough that there is pavement at ground level, for the
> outline of the building to be drawn on the ground with a sign that says
> "Private property of So-and-so".  This is a bare license: members of
> the public may cross the pavement at will, but no adverse possession/
> prescription arises (that is, the pavement does not become a public
> highway at common law), because the public is put on notice that private
> property rights can be enforced.  (Sometimes, as in New York City,
> the pavement is actually cordoned off once a year in order to make it
> clear that no easement has been formed.)
IANAL, but land-use law gets interesting in these areas, doesn't it?  
Another tactic I have seen is, "you may use this land, provided that you 
maintain it, and pay me $0.50/year in rent plus the $100 up front I 
spent on legal fees getting this figured out."  The rent in this case is 
merely symbolic to avoid such issues (but again, this sort of thing is 
always important; consult a lawyer).

Best Wishes,
Chris Travers
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