Wired Article on the GPL

[Richard Watts]

On Thursday 30 March 2000, W. Yip
<weng at yours.com> wrote:

>On Wed, 29 Mar 2000 19:47:29 -0800 (PST), Ken Arromdee <arromdee at rahul.net>
>wrote:
>>But it turns out that that's not what they meant.  The Wired article is just
>>written poorly.  Someone on Slashdot quoted the actual law that they *were*
>>referring to:
>
>Having gone through the following, I still fail to see how FSF fits into
>the picture. Was wired.com merely doing some publicity for FSF?
>
>>-------------------
>>USC 17 205 E
>>(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive
>>License. - A nonexclusive license, whether recorded or not, prevails over a
>>conflicting transfer of copyright ownership if the license is evidenced by a
>>written instrument signed by the owner of the rights licensed or such owner's
>>duly authorized agent, and if - 
>>(1) the license was taken before execution of the transfer; or 
>>(2) the license was taken in good faith before recordation of the transfer
>>and without notice of it. 
>>-------------------

 IANAL, but from an English perspective, there's nothing in that
 paragraph that says that an informal nonexclusive licence shouldn't
 take priority over a later, formal transfer. In the absence of the
 condition in the clause holding that, the court can make up its own mind.

>>That *could* mean that if there is a signed contract, then the GPL takes
>>priority--and conversely, if there wasn't a signed contract, then Mattel's
>>ownership takes priority.
>
>The above makes sense. *Imagine* Microsoft being bought by XXX company
>tomorrow. You do not want to have your license to Windows being revoked
>would you (really) ?

 Microsoft couldn't do that anyway: they can't exclusively sell to XXX
 rights they have already contracted away to you - this is just a case
 of selling something twice, and XXX will just have to sue Microsoft
 for it.

 By analogy, if I (M) sold you (A) a car, then sold the same car to B,
B would have the right to sue me for the cost he paid for the car that
was owned by you. He wouldn't have the right to sue you for delivery
up of the car.

 That argument, I think, will work (in the sense of not being fatally
flawed) provided US law treats IP rights as property - UK law does,
but I don't know what US law does in this situation.

 Also, the UK has no such provision, so the GPL should take
precedence.

[snip]
>>From what you have quoted, the USC 17 205 does *not* address the rub of the
>GPL situation, which is about a recurring 'chain of licenses'. It is this
>element involving unlimited distribution which Mattel aims to stop.

 Quite. Unfortunately, from the GPL :

-------------
>  1. You may copy and distribute verbatim copies of the Program's
>source code as you receive it, in any medium, provided that you
>conspicuously and appropriately publish on each copy an appropriate
>copyright notice and disclaimer of warranty; keep intact all the
>notices that refer to this License and to the absence of any warranty;
>and give any other recipients of the Program a copy of this License
>along with the Program.
--------------------
 
 And section 4 goes in the same vein: rights are granted to you to
grant rights to others - the rights do not flow directly from the
authors, so I don't see how Mattel can attack the chain of
distribution.

>
>The USC 17 205 only seems to address the single license, from one
>individual to another.

 Again, I don't know about US law, but I don't believe there's
 anything in English law which distinguishes a licence allowing
 sublicencing.

[snip]
>>It's still a little strained to interpret it that way.  It doesn't say outright
>>what happens without a signed contract, so it might only mean that it doesn't
>>*automatically* prevail without one, not that it can't prevail at all.
>
>I think it safe to assume that in absence of a 'written instrument' a
>license is exhausted by the act of copyright transfer. 

 Why ?

>This is because,
>without a 'written instrument' the license is almost certainly a bare
>license - ie. plain permission. One cannot claim permission to an article
>subsists even after ownership of the article has passed.

 I don't see why: contracts can perfectly happily be informal. The big
problem, AFAICS, is going to be consideration: I'm not sure a court
will buy the idea of fame as a consideration, unless (1) there's
precedent, or (2) it really wants to.

 Other than that, since the GPL doesn't provide any obligations more
binding than those you would have to adhere to anyway if you didn't
accept it, I don't see how there can be consideration. Now, if you
were to modify the GPL so that you agreed to jump up and down twice
every Thursday, that might make it a contract. 

 If you were feeling audacious, you could argue that the lack of
warranty makes consideration - that there would be an implied warranty
if you used the software indirectly, without agreeing to the GPL (for
example, by visiting a website using the software), and that GPL
explicitly disclaims it so you are giving up something valuable. But
somehow, I don't think that's likely to work :-(.

>
>Again, when we superimpose UCITA mandating that every license is a
>contract, then this becomes problemmatic, since a contractual license
>cannot be plain permission

 Quite.

[snip]
>>if you interpret the law that way, you come up with the absurd conclusion that
>>the initial copyright owner might be unable to revoke the license, but if he
>>transfers the license to someone else that other party can do what he can't.
>
>This might not be absurb because the initial copyright owner would be the
>one who voluntarily chose this particular course of action (GPL), and so we
>can argue he ought not be allowed to renege from it. OTOH, a purchaser,
>particularly a bona fide one, may not know anything about the licenses
>attached to a copyright which he is purchasing, and thus deserves
>protection from copyright holders who may be dishonest.

 But licence holders also deserve protection from the creators of the
 work - it's obviously unjust for me to be forced to compensate XXX
 because Microsoft ignored its obligations to me. This also blatantly
 ignores the idea that IP rights are property - I can transfer a right
 to A, then transfer the same right to B, and B gets the rights: this
 isn't what happens in `real' property and I see no reason for it to
 be what should happen here. Indeed, the clause quoted seems to be
 making it clear that it shouldn't.
 
 I really don't think that whether the licence is written or not
 makes the blindest bit of difference - the issue is whether the GPL
 is a contract or not, and the answer seems (to me) to be `not until
 there's some consideration'. I guess we'll end up with Mattel winning
 in the UK and the US until the first post-UCITA case, after which
 it's all up for grabs again in the US.


Richard.