[License-discuss] Companies that encourage license violations

[Pamela Chestek]

On 9/6/2015 1:03 PM, John Cowan 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.
Well, since you can't (or don't want to) comply with the copyleft
provision, you can't rely on the FOSS license, so you have to comply
with whatever other license you can get, which may include not
disclosing the code. Although that seems kind of silly to require, since
the code is public.

>
>> 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....
Doesn't that mean that the word "irrevocable" is meaningless? We don't
like words without meaning in contracts, especially one so central to
the entire premise of free software.

>
>> 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 exploit a GPL right; otherwise the pre-announced GPL would be superseded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.)
If you're not getting any benefit not already available under the GPL
then I would argue the proprietary contract is void for lack of
consideration.

>
>> 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.
Java BCL, anyone?

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
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