Eiffel Forum License

Tue May 2 01:47:55 UTC 2000

You are correct. I sometimes refer to the GNU GPL and other times mean
public licenses, generally. Sorry for the confusion. Yes, I think the GNU
GPL is enforceable, although it may need revision in light of UCITA. There
are other public licenses that have picked over the GNU GPL's language to
their detriment. Some of them are not as likely to withstand judicial
scrutiny. The copyleft provisions that Stallman favors add more teeth to the
GNU GPL than he likes to admit. Although copyleft has a viral nature that
is, indeed, problematic, it is a strong copyright restriction (Yes,
copyRIGHT) that offers the FSF both a potential breach of contract claim AND
a copyright infringement claim.

Rod

> -----Original Message-----
> From: Tom Hull [mailto:thull at sco.com]
> Sent: Monday, May 01, 2000 9:16 PM
> To: Rod Dixon, J.D., LL.M.
> Cc: Rick Moen; license-discuss at opensource.org
> Subject: Re: Eiffel Forum License
>
>
> Rod Dixon, J.D., LL.M. wrote:
> >
> > These issues are not simple; even a lawyer must consider them
> carefully. I
> > understand the confusion. I hope I do not add to it.
> >
> > Actually, this is an issue that keeps coming up on this list
> and elsewhere.
> > First, the easy part, a license IS a contractual obligation. No
> disputing
> > that issue. It is basic legal point.
> >
> > As I see it, there really are two questions being asked: 1)what
> is the legal
> > basis of a software license? and 2)Is the GPL legally enforceable?
> >
> > Applying U.S. law, the answer to the first question is a
> software license
> > rests on both copyright law AND contract law. The answer is
> complex, but I
> > will be brief. The Copyright Act requires the use of a license in some
> > instances, but most software licenses are not based on that requirement.
> > Instead, many mass market software licenses are intended to impose
> > restrictions on users of software that have nothing to do with
> copyright.
> > Since these restrictions are outside of the scope of copyright, software
> > developers must rely upon another body of law (other than copyright)  to
> > enforce these restrictions, if a user violates the license;
> that body of law
> > is contract law. It so happens that when a user violates a
> software license
> > provision, they often, if not always, also infringe the developer's
> > copyright. Consequently, the developer/copyright holder is able
> to file suit
> > for breach of contract and copyright infringement. As a
> practical matter,
> > the remedies available for copyright infringement (which also
> gets you into
> > Federal court) are so substantial they are more than sufficient in most
> > cases.
> >
> > Having said all that, I should note that there is a cloud over
> some software
> > licenses (click wrap and shrink wrap, in particular...but you
> could probably
> > add GPL). Many law scholars appropriately question the extent
> to which these
> > licenses are really enforceable. At any rate, some courts have enforced
> > shrink wrap licenses and UCITA was drafted to clear up any questions
> > remaining on this matter (whether UCITA will be successful remains to be
> > seen, but there is a strong lobby of developers and other
> copyright  holders
> > supporting it). BTW, I think shrink wrap licensing was a
> dubious and cynical
> > tool used by software developers/distributors to expand their
> "rights", but
> > the reality is that those licenses are now with us to stay.
>
> I'm with you so far.
>
> >  2)Is the GPL legally enforceable?
> >   Even if Micro$oft can lawfully enforce its software licenses
> as a  amtter
> > of contract law and copyright, the  question remains whether
> the GPL (or a
> > public license, in general) is enforceable.
>
> Note that above you refer to "the GPL" -- which is clear -- and below you
> refer to "GPLs" -- which isn't. I wish you would restrict your
> use of "GPL"
> to mean _the_ GPL. Are you saying that _the_ GPL is unenforceable?
>
> > I think GPLs are enforceable, IF (...big IF...) they are
> drafted correctly.
> > Some people think some GPLs lack consideration. The issue of
> enforceability
> > is critical for GPLs since, unlike traditional software licenses, public
> > licenses are fairly permissive on copyright. In this regard,
> the copyright
> > holder may find it difficult to claim copyright infringement.
> The copyrights
> > are often all granted. He or she will need to rely on the
> license and claim
> > breach of contract. This is particularly true when a public
> license does not
> > contain a copyleft provision, which, actually, quite cleverly
> safeguards the
> > copyright claim.
>
> Now this last sentence sounds like you are saying that GPL is
> written in such
> a way as to be enforceable purely on copyright law.
>
> > (Notice, I have not complicated this further with UCITA,
> > but surely that problem will come to the open source community soon.)
> > I hope this helps.
> >
> > Rod
> >
> > ___________________________________
> > Rod Dixon
> > Visiting Assistant Professor of Law
> > Rutgers University School of Law - Camden
> > www.cyberspaces.org
> > rod at cyberspaces.org
> >
> > Chief Counsel
> > FreeBuyers Net, LLC
> > www.freebuyersnet.com
> > dixon at freebuyersnet.com
> >
> > > -----Original Message-----
> > > From: Rick Moen [mailto:rick at linuxmafia.com]
> > > Sent: Monday, May 01, 2000 12:05 AM
> > > To: Rod Dixon, J.D., LL.M.
> > > Cc: license-discuss at opensource.org
> > > Subject: Re: Eiffel Forum License
> > >
> > >
> > > Quoting Rod Dixon, J.D., LL.M. (rod at cyberspaces.org):
> > >
> > > > Someone, I have forgotten who, sorry, made an interesting
> > > comment about the
> > > > enforceability of GPLs, generally. I agree that it is an
> open question
> > > > whether a court would enforce some public licenses. If a
> license lacks
> > > > consideration, it's enforceability is dubious and some
> developers may
> > > > violate the terms of the license knowing that the copyright
> holder has
> > > > little chance of prevailing in court.
> > >
> > > I note Patrick Doyle's recent comments.
> > >
> > > Is consideration relevant outside contract law?  It's always been my
> > > understanding that free software licences purport to be a transfer of
> > > copyright, not a contract.
> > >
> > > You're the guy whose name has those initials trailing after
> it; what are
> > > we missing, here?  ;->
> > >
> > > --
> > > Cheers,              "By reading this sentence, you agree to be
> > > bound by the
> > > Rick Moen             terms of the Internet Protocol, version 4,
> > > or, at your
> > > rick (at) linuxmafia.com   option, any later version."  -- Seth
> > > David Schoen
> > >
>
> --
> /*
>  * Tom Hull -- thull at sco.com * http://www.ocston.org/~thull
>  */
>