[License-review] Sublicensing

[Jim Wright]

I'm not sure why the fact that *some* FOSS licenses are always directly from the original copyright holder (because that is clearly stated in the license terms) necessarily dictates that this is the case for *all* FOSS licenses.  MIT, by example, expressly states that sublicensing is permitted (sublicensing being defined as a new license issued by a licensee rather than the original copyright holder).  Others are silent on the issue and commonly interpreted to permit it.

While a downstream recipient may be unable to avoid the conditions of the license if that's how it's drafted, the existence of conditions or pass-through terms in a license does not mean that permitted sublicenses must otherwise duplicate the entire set of terms and rights of the original license.  (In a commercial licensing context, sublicenses of more limited sets of rights are often expressly contemplated, this is commonplace and I don't think the point is controversial…)

So if it's the case that sublicensing is permitted at least in some cases, why is that a good thing rather than a bad thing?  Well, it seems to me to be what allows the mechanics of copyleft license compatibility to work at a fundamental level - if I cannot sublicense a copy of an MIT licensed header file to a subsequent recipient under the GPLv2, I don't know how I can include that header file in a GPLv2 licensed c file and then distribute the compiled object file and corresponding source, because the recipient of the combined module needs to get "each and every part" under the GPLv2.  If you can't sublicense, strong copyleft becomes materially more difficult to navigate, at least on some execution platforms. 

I understand the perspective that as long as you're distributing the source and notices to everything, few will complain, but that doesn't mean no one will - and beyond that, if we foster an environment where copyleft requirements are not subject to strict compliance as long as all the source is released, maybe that's ok, but it seems to me this may cultivate a culture which weakens the strength of how copyleft licenses are interpreted and implemented generally, which will bleed over into commercial use as well to the extent it hasn't already.   And if you're a fan of strong copyleft, this might not be a preferred outcome.

 Best,
  J




On Sep 11, 2014, at 8:49 AM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:

> Hi Pam,
>  
> You raise a good point. Why would we encourage sublicensing then, if there is no privity by which to enforce the covenants in the FOSS license?
>  
> FOSS licenses are direct from the copyright owner to the ultimate licensee. For example, GPLv3 § 10 expressly avoids sublicensing: "Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License." [Emphasis added.]
>  
> That give the licensor all the privity he needs to enforce his license against each and every licensee. No intermediary commercial distributor can then interfere with the freedoms or the obligations (conditions or covenants) associated with that license.
>  
> IOW, sublicensing hurts. It doesn't help anyone except an intermediary distributor who can distribute commercial software with hidden FOSS components.
>  
> /Larry
>  
> -----Original Message-----
> From: Pamela Chestek [mailto:pamela at chesteklegal.com] 
> Sent: Thursday, September 11, 2014 6:22 AM
> To: license-review at opensource.org
> Subject: Re: [License-review] Sublicensing
>  
> Changing subject line ...
>  
> On 9/9/2014 5:04 PM, Lawrence Rosen wrote:
> > Once we agree on those basic principles, then it is fair to ask
> > whether "sublicensing" actually provides anything different or whether
> > it is an ancient commercial licensing word that was thrown into the
> > MIT and other licenses among the 17 USC 106 "copyright rights"
> > actually being licensed for no important purpose.
>  
> I believe the difference will be whether the downstream recipient is obliged to satisfy the covenants of the license versus the conditions.
> One can only sublicense the rights one has, so if the original grant has conditions on the grant, then the sublicensee will also be obliged to satisfy the same conditions. However, to the extent the license has covenants, those are a creature of contract only, and since there is no privity between the original licensor and sublicensee, the sublicensee wouldn't be obliged to satisfy the covenants.
>  
> Pam
>  
> Pamela S. Chestek, Esq.
> Chestek Legal
> PO Box 2492
> Raleigh, NC 27602
> 919-800-8033
> pamela at chesteklegal.com
> www.chesteklegal.com
> PGP key 246A430A
>  
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