[License-discuss] Companies that encourage license violations

Kevin Fleming kevin+osi at kpfleming.us
Tue Sep 8 21:14:48 UTC 2015

Pam, thanks for bringing your considerable legal attention to this, as I
find it fascinating :-)

The genesis of my statement (which I purposely left ambiguous because IANAL
and IANYL and many here are) is that a set of source files that do not have
any copyright/license statements included and a set that do have such
statements included could easily be considered *different works*, because
they contain different content. The content difference may be immaterial to
the usage of the code (it certainly doesn't affect compilation or execution
of the code), but it's still different. It might even be reasonable to
claim that the version with the statements is a derivative work of the one
without the statements, even if produced by the copyright holder(s).

Given that, if someone has a copy of the version without such statements,
I'd personally recommend (and certainly do in my day job) that finding
another copy elsewhere that has such statements is immaterial. This usually
doesn't matter when the discussion occurs before any potentially infringing
activity has occurred, since we can just tell the user to go download the
copy with the license statements, but after the fact I'd be quite surprised
that demonstrating the existence of the other copy would be sufficient.

On Sun, Sep 6, 2015 at 1:03 PM, John Cowan <cowan at mercury.ccil.org> wrote:

> Lawrence Rosen scripsit:
> > What non-GPL things are you talking about?
> Insofar as I can reconstruct my thinking of last night (post in
> haste, repent at leisure), I was thinking of the ordinary proprietary
> opt-out clause letting you incorporate Yoyodyne's library into your
> binary-only program.  I suppose that Yoyodyne could require you to keep
> the proprietary-licensed copy to yourself, even though it's bit-for-bit
> identical with the GPLed version and has a common origin.
> > But a more general GPL work available publicly (e.g., Linux) is and
> > remains under the GPL forever.
> In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a
> leg to stand on.  If I put up a sign on my land saying PUBLIC ACCESS
> PERMITTED and then take it down before prescription kicks in, the
> fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't
> seem to help someone I sue for trespass, except through the exceedingly
> dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands).
> Doubtless if they were actually in transit when I revoked the
> permission....
> > It becomes confusing when a company adds *incompatible* proprietary
> > terms to the GPL for a publicly available work. Is this a contract that
> > any company can negotiate with its customers? Is that ever effective
> > at restricting GPL freedoms?
> I admit that such a thing is economically improbable, but I don't see what
> grounds a court would have for treating it as voidable, never mind void.
> (I'm assuming that any contract under the GPL only kicks in when you
> exploit a GPL right; otherwise the pre-announced GPL would be superseded
> by the proprietary contract anyway.)
> > But I'd also try to avoid *contractual* litigation by never agreeing
> > to *restrictive* proprietary contracts for GPL software. Don't contract
> > away your free software. I've never seen anyone actually try to do that,
> > which is why I'm confused by John Cowan's comment.
> I haven't heard of it either, but that may only be only because people
> don't usually announce that they've been snookered.
> --
> John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
> Do I contradict myself?
> Very well then, I contradict myself.
> I am large, I contain multitudes.
>         --Walt Whitman, Leaves of Grass
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