(OT) - Major Blow to Copyleft Theory

Mahesh T. Pai paivakil at yahoo.co.in
Tue Aug 28 05:02:34 UTC 2007

Chris Travers said on Mon, Aug 27, 2007 at 09:32:57AM -0700,:

> 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.

The GPL does not expect anything in return for mere use. All
provisions of the GPL kick into action ONLY when you go beyond mere
use of the work.

The copyright law PROHIBITS certain acts by a recipient of the
copyrighted work. The holder of the copyrights can grant anybody all
or any of those rights ordinarily prohibited by copyright law.  The
GPL and all copyleft/opensource licenses do precisely that*. This
permission is granted by the GPL to the person wanting to do the
things prohibited by the copyright law on his fulfilling certain
conditions. Those conditions are conditions of the license, and hence
governed by the law of copyright.

To understand the above paragraph, you first have to grok this

You want to buy shares in a quoted company. Your act of purchasing the
shares is governed by ordinary law of contract (as limited by the
securities contracts law in your country). Once you buy them, a
different contract embodies in two documents - the Memorandum of
Association and Articles of association, together govern your
relationship with the company and other shareholders. Again, the
contents of these documents cannot be a carte blanche. They have to
conform to the law relating to corporations.

So, to simply say that a contract granting rights created by the law
of copyright is a gross (going most of the posts here, deliberate)
misunderstanding of the entire legal system. Yes, copyright licenses
are contracts; but they are contracts dealing with rights in copyright
law, and hence, remedies for violation of copyright contracts is to
governed by the law relating to remedies for violation of copyrights.

BTW, the argument/FUD sought to be spread here works both ways. Just
consider this:-

A person violating the Microsoft EULA (for any of their OSes, for
example) is exposing himself to CRIMINAL cation, because by violating
the EULA, his copy of the OS has become unauthorised. Possession
and/or use of unauthourised copies of copyrighted work is a crime as
per the law of copyrights. 

In short, violation of a contract exposes  a user of Microsoft
products  to criminal action.

I am saying all this because of your statement that ``THere are
expectations of > return (in the form of source code of derivative
works)''. This is not fully accurate; the expectation is not always
present; and arise only when you (or a recipient of the copyrighted
work) does something prohibited by copyright law. Again, remember that
the _GPL_ does not impose a heavy burden for mere distribution of
received work as is, without any modifications. See section 4,
``conveying verbatim copies'' of GPL v.3 for details. 

(*) In contrast, the EULAs for non-FLOSS software restricts the user
    from several of the rights granted by the copyright law by
    default. Non FLOSS licenses thus restrict user's rights; and the
    concept of the ``copyleft license'' was, IMHO,  a response to the
    practise of ``copyright license'' which took away users' rights. 

 Mahesh T. Pai <<>> http://paivakil.blogspot.com/
Learn from the mistakes of others.
You won't live long enough to make all of them yourself.

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