For Approval: GPLv3

Fri Aug 31 06:04:01 UTC 2007

IANAL, of course.

On 8/30/07, Donovan Hawkins <hawkins at cephira.com> wrote:
>
>
>
> The rights originated from you precisely because you are the only one
> capable of giving those rights. That fact is not changed by the method I
> choose to convey downstream. AFAIK this is a matter of pure copyright law,
> so you don't need a reading of the GPL to answer this one.

On further reading, sublicensing would be between the sublicensor and the
sublicensee.   I don't know whether anyone has ever tried a theory of public
license (i.e. the author said anyone could....) but this would make sense as
a defense here (i.e. I have a separate license now and even though I didn't
physically have it then it was in effect because the author published the
code to the public under these terms...).  In essence I am acting as agent.
Not sure if that would really work with the BSDL or not, but....

If you look up the De Forest Radio case that Alexander was making such a big
deal about the other day, you will see:  De Forest entered into contract
with AT&T and gave them some patent licenses.  This included a contract to
make parts for the government under this patent, which in turn granted AT&T
a right to form certain limited sublicenses for the patents.  These
agreements were between AT&T and the government (and during WWI, AT&T waived
rights to injunctive relief on the promise that the government would pay
monetary damage later).

I think the GPL3 is very confusing here because on one hand it seems to
prohibit such an agent negotiation role (sublicensor) but at the same time,
try to put one in effect.    I wonder whether the right to remove these
permissions could be held unconscionable under contract law...

> Isn't this false advertising though?  I mean, if I grant downstream users
> > rights to use the software a certain way, at most someone can hide my
> > additional permissions.  Hence this is advertising that the code is
> subject
> > to copyright restrictions which it is not subject to.  They can't
> enforce
> > those changes because they aren't a party to the license.
>
> Obviously "false advertising" applies to something else entirely, but
> let's use that example. I said "this software comes with the rights of a
> bare GPL v3." It ACTUALLY comes with even more rights granted by you. You
> are concerned that I implied that those rights don't exist, but I never
> said that. You just assumed, incorrectly, that I was enumerating all the
> rights. I wasn't and didn't intend to.

This seems pretty sketchy to me.   Part of the problem is that the license
is a legal contract between the licensee and the licensor.  Alteration on
the part of a third party might seem problematic.

In short what the BSDL varients which explicitly permit sublicensing say is
that "you may enter into a separate contract with downstream users on behalf
of the copyright holder."  This is saying :"you may alter the agreement
between two other parties in the following manner."  I don't know.  I think
anytime I see any such points on a license contract, or other legal
document, I will take of running ;-)

Note that some other varients of the BSDL do not specifically permit
sublicensing, which would be closer to your interpretation.  How many BSDL
varients are there?

If I advertise "No other product can beat ours", people assume our product
> is the best. Of course, it might also be true that no other product is
> worse than ours...in other words, that all the products are identical. Not
> false advertising because what I said is entirely true.

Part of the problem is that you are saying that the GPL 3 grants the right
to misrepresent what someone says you can do under copyright in a *legal*
document.  This is very different from your examples.  If it is not false
advertising, perhaps it is libel if done maliciously?

You can never assume that a statement is a complete statement unless it
> says it is. There's a section of US Federal tax law that says roughly "The
> term "state" includes the District of Columbia, Puerto Rico, and Guam".
> The term is then used to define who is required to pay income taxes in the
> US. Tax protestors have argued "Well, I don't live in the District of
> Columbia, Puerto Rico, or Guam, therefore I don't live in a 'state' and
> don't have to pay taxes". They even claim to live in "The Republic of
> California" in correspondances with the IRS. And, not surprisingly, they
> lose in court every single time. The courts know perfectly well that
> "state" ALSO refers to the 50 states of the union, even if those weren't
> mentioned.

The difference is that you are tampering with a legal adherence contract.

> They are just
> > advertising restrictions on the code that nobody can enforce.  This
> seems
> > dangerous to me but IANAL.
>
> A license is a grant of rights. Our licenses can't be a restriction
> because they are unilateral. The rights may be conditional but they never
> actually restrict you relative to what you could do without the license.

True, but the fact remains that the GPL is a contractual agreement (if
accepted by excersizing rights in it) which exchanges those rights it grants
for certain responsibilities.  Changing those responsibilities without
adding copyrighted material to the affected portions seems dangerous.

If I give you the right to sell my book on Tuesday, you can't say that I
> forbade you from selling on other days of the week. You never had the
> right to sell on ANY day of the week, and I selectively granted you the
> right for Tuesday. In no way did I restrict your right to sell on Monday;
> you never had that right and I did nothing to change that fact.

No, this is diferent.  You are representing my permissions in a legal
document-- a contact.   (Note that the GPLv3 dropped all claims not to be a
contract on the advice of lawyers,  The footnote said that this was never
intended to be a legal interpretation anyway.)

If you elsewhere obtained the right to sell my book on Monday, this second
> permission to sell only on Tuesday would not prevent that. GPL v3
> specifically has a clause saying that it does not restrict rights you get
> elsewhere.

But you have to get them elsewhere.  If those permissions are removed...
Suppose they hear them from someone who got a copy from me but isn't
distributing them.  Obviously they haven't gotten the permissions from
another source capable of granting them, have they?

So using a subset of the original license does not restrict anyone, it
> does not claim to restrict anyone, and it is not falsely advertising that
> anyone is restricted. It is simply an incomplete statement of rights.

How can you read the ability to remove permissions  other than a claim to
restrict anyone?

Best Wishes,
Chris Travers
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