encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

[John Cowan]

dtemeles at nvalaw.com scripsit:

> Which section of the Artistic License provides for termination?
> None expressly do - presumably because the licensor assumes, possibly
> incorrectly, that it will be able to get an injunction to prohibit
> future violations.

More likely because the Artistic License version 1 is deliberately
sloppy and sucks^N.  (That is pronounced "sucks to the Nth degree",
for non-technical folks.)  Nobody should rely on it for anything,
as it is an expression of Larry Wall's personal philosophy of reuse,
not a sensible license.

> (Even if the court finds that Katzer's license to  
> continue using the software is terminated, what would prevent Katzer  
> from obtaining another license to the software?  Afterall, anyone  
> having obtained the software under the Artistic License could license  
> it to him.)

That seems extreme.  Surely if a copyright license is terminated with
respect to someone by reason of breach of covenant, *every* such license
with identical terms is terminated.  The license comes from the original
licensor, remember (or a contributor with respect to his contributions),
not from a mere verbatim-copy distributor.

Otherwise, we'd have to say that there is no such thing as revocation
of a public license at all.  *Do* you mean to say that?

> In essence, the OWNER of a particular copy of software is entitled
> to transfer that copy regardless of what the licensor or the license
> agreement.

Quite so.

> Let's assume that the court finds that the Artistic License authorizes
> Katzer to make as many copies of the software as he desires.  In fact,
> let's assume that the court finds that the license authorizes Katzer's
> modification of the software and his creation of as many copies
> of the modified version as he desires.  (Arguably, the attribtion
> and change notice requirements are directed to the distribution of
> modified copies or the use of modified copies, rather than the act of
> modifying the software itself).  Let's also assume that the court finds
> that Katzer is the owner of the modified copies.  If this is the case,
> then Section 109(a) arguably permits Katzer to distribute the modified
> copies without the permission of Jacobsen as the copyright holder.

On that rather complex chain of assumptions, then yes: which is another
way of saying "if the license is broken, it's broken".

> Equitable estoppel  
> "applies both in law and in equity to deny a party the right to plead  
> or prove an otherwise important fact--here, the act of  
> infringement--because of something he has done or omitted to do."  
> Broadcast Music, Inc. v. Hearst/ABC Viacom Entertainment Services, 746  
> F. Supp. 320, 329 (S.D.N.Y. 1990) (Keenan, J.)).

It's awfully shaky ground, though.  We've had it come up before in dealing
with the hypo "What happens if a GPLv2 licensor revokes the license?"
All past conduct seems clearly safe on general principles, and equally
all future acts of copying, distributing, modifying are forbidden.
The gray area where e.e. may or may not operate is in what happens to
people who are currently in compliance as to their "in-flight" copies
and modifications.

BTW, the disclaimer usual on this list is "I am not a lawyer [or: I am
a lawyer but not *your* lawyer]; this is not legal advice."

-- 
Not to perambulate                 John Cowan <cowan at ccil.org>
    the corridors                  http://www.ccil.org/~cowan
during the hours of repose
    in the boots of ascension.       --Sign in Austrian ski-resort hotel