Automatic GPL termination

Tue Sep 18 16:39:17 UTC 2007

It’s true that the FSF should better not insist that the GPL is not a
contract, unless it adds a US jurisdiction specifying the interpretation of
the term “licence”. This would finally stop the different conflicting
interpretations, that would be solved more cleanly using the equivalences
established by the national implementations of the WIPO treaties.

If the GPL needs to be enforced internationally (as it should) it should
have the same enforcement, scope of application, and protection level as any
other proprietary licence under WIPO rules (note that GPLv3 contains a
provision directly linked to a WIPO treaty, in the definition of technical
countermeasures used in DRM schemes, meaning that the FSF already recognizes
it! It also contains provisions related to patents, which only exist
internationally under WIPO rules).

So just to make things clearer to everyone, the FSF should just need to say
that the licence document is written and protected under US law (it is
already the case, given that the GPL text is exclusively copyrighted and
signed by the FSF established in US, meaning that the interpretation of the
text is done according to US law, and then protected internationally thanks
to the Bern Convention and WIPO treaties, meaning that the licence in US
becomes a contract in other countries, where applicable).

Too much time has been invested into trying to convince that the GPL is not
a contract, this is useless, given that licences in US are recognized as
contracts internationally. The US-specific segregation between commercial
contracts and copyright-licencing scheme does not apply magically to other
countries: this is the WIPO trey ratification process that establishes the
mapping to relevant laws and their protection in each country.

So if a non-US resident author, say for example in France, creates and
publishes something with a GPL licence, it benefits of the protection by
French law for author’s rights, moral rights, and these get protected under
WIPO rules (and in European Union with the EUDC directive implementation by
each member country), so that these rights and obligations are recognized in
US too. So the contract, valid in France becomes valid in US too, due to the
WIPO membership and ratification of the Bern convention by US, according to
the implementation in US of the WIPO treaties.

The relevant thing here is not only the licence, but the copyright notice
that provides (and really should provide) the national origin of the author.

In other words, just use the GPL as indicated, and make sure that your
required copyright notice not only gives the author name, but also its legal
residence country, i.e.: “Copyright © 2007, John Dub, USA.”, not just
“Copyright © 2007 John Dub.”. This definitely fixes the ambiguity of
interpretations. Just specifying the author name is not enough to enforce
the GPL internationally and protect every relevant author’s rights.

Evidently, the authors must not lie in their copyright notice about their
country of legal residence (to get some additional protections that they
don’t have in their own country), if they want an enforceable application of
their legitimate rights: they must be prepared to defend legal their
position in a relevant court of the indicated country, so they must have
legal residence there, or be prepared to defend their case abroad.

An author should not automatically need to defend their rights in a US court
(according to the legal residence of the FSF), just because the GPL is
written and signed in US, because this would be very costly for that author
if he does not live there (and in some cases, he may not even be able to
travel into US, due to travel/migration legal restrictions, and having to
pay the service of a US lawyer would be really too much expensive for most
international authors of GPL covered works). All we need is the possibility
for an author to specify a relevant court to defend its legal rights there,
so that this court decision becomes applicable internationally according to
WIPO treaty implementation rules: a US court will then be able to apply the
foreign decision using the US implementation laws relevant to the WIPO
treaties ratification by US.

This scheme simplifies a lot the problem, because the WIPO treaties (plus
other international treaties like those ratified in WCO) are used as the
single kernel for enforcing a licence internationally. This scheme allows
the convergence of different legal systems, and it also reduces the cost of
generating multiple licences applicable only to some areas (like Microsoft
does in its EULA which contain distinct texts for several countries, only
because Microsoft is able to defend its position in each of these countries
where it is legally established).

  _____  

De : Chris Travers [mailto:chris.travers at gmail.com] 
Envoyé : mardi 18 septembre 2007 17:31
Cc : license-discuss at opensource.org
Objet : Re: Automatic GPL termination

On 9/18/07, Arnoud Engelfriet <arnoud at engelfriet.net> wrote:

Speak for your own country, USAnian. In civil law Europe,
conditional licenses are contracts, period.

I would add that we have recently seen a court conclude the same thing here.
Furthermore, if the GPL were *not* a bilateral contract, arguments that one
should seek specific performance (to make people live up to their end of the
bargain) wouldn't be safe.  THe most you could argue for would be an
injunction. 

IANAL, though.

In short the whole world (other than RIck, the FSF, and a few others), know
that the GPL is a bilateral contract which gives someone certain rights in
exchange for certain performances on their part. 

Best Wishes,
Chris Travers

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