Viral permissiveness

[Steve Thomas]

Hello again,

dtemeles:

> While the FSF's claim that code can be re-licensed in toto under the GPL by someone other than the author of the work is an interesting read, the claim wholly ignores copyright law.

In your opinion then, must all software distributed as source code,
that involves contributions under different licenses, have either ...
  1) an accompanying, 'definitive', revision history available for a
licensee to inspect
or
  2) be distributed in original+patches form, with each patch
potentially having a different license notice applying to it
... in order to be legally "sound", meaning that the licensee can know
which licenses apply to code fragments?

Hmmm, is this another reason why the FSF and others insist on
copyright assignment for changes larger than a certain threshold, in
order to avoid this issue in respect of differing licensors?

> 17 U.S.C. § 103(b) provides:
>
> The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

My inference, false as it may be, upon reading the SFLC document [1],
was that there is some consideration of prior practice in respect of
this problem of file-versus-fragment coarseness. I note that the OSI
Licensing-HOWTO [2] states:

"Furthermore, the presence of the interpretive tradition established
by the OSD itself may prove important if your license is ever tested
in court. At time of writing (late 2002) there is to our knowledge no
case law either confirning [sic] or denying the enforceability of any
open-source license. However, it is a legal doctrine (at least in the
U.S., and probably in other common-law countries such as England and
the rest of the British Commonwealth) that courts are supposed to
interpret licenses and contracts according to the expectations and
practices of the community in which they originated."

Is it possible for "historic community practice", especially where
"vast commercial reliance on the result" exists, to override your
elegant but strict interpretation?

Thanks very much for your intriguing input,

Steve

[1] http://www.softwarefreedom.org/resources/2007/gpl-non-gpl-collaboration.html
[2] http://www.catb.org/~esr/Licensing-HOWTO.html

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