A must read for license law

[daniel wallace]

The FSF analogy of "public license" and the GPL is really what I was 
referring to. The analogy of
the GPL as a General "Public License" is extremely confusing to a large 
number of people.

http://www.gnu.org/philosophy/enforcing-gpl.html

"The essence of copyright law, like other systems of property rules, is 
the power to exclude. The copyright holder is legally empowered to 
exclude all others from copying, distributing, and making derivative works.

This right to exclude implies an equally large power to license--that 
is, to grant permission to do what would otherwise be forbidden. 
Licenses are not contracts: the work's user is obliged to remain within 
the bounds of the license not because she voluntarily promised, but 
because she doesn't have any right to act at all except as the license 
permits."


The first paragraph quoted from the FSF describes the legislative 
"malefaction" (malum prohibitum) power to restrain what would be legal 
at common law.

"One-half of the doubts in life arise from the defects of language, and 
if this instrument had been called an exemption, instead of a license, 
it would have given a better ideal of its character. Licensing acts, in 
fact, in legislation, are universally restraining acts ..." Johnson, J., 
concurring, Gibson v. Ogden, 9 Wheat. 1, 222, 232 (U.S. 1824).

The second paragraph of the FSF explanation then sorely confuses the 
"malefaction" power of the government with the private "benefaction" 
power of the individual copyright holder to contractually license "in 
privity".

This confusion gives rise to the myth that a copyright license is not a 
contract. Even a "bare
license" is a unilateral contract and any dispute in a court of law will 
be examined first
under state common law of contract prior to evaluating federal copyright 
claims. A failed
copyright license may give rise to promissory estoppel claims.

In a few weeks or months everything released under the GPL --- ~ 80% of 
open source code will be
in a state of quasi-public domain due to promissory estoppel.

One only need examine IBM's amended counterclaims to see this:

                      SEVENTH COUNTERCLAIM

                   VII   Promissory Estoppel
113.
   IBM repeats and realleges the averments in paragraphs 1
through 112, with the same force and effect as though they
were set forth fully herein.

114.
   SCO made a clear and unambiguous promise to IBM and
others that SCO would copy, modify or distribute programs
distributed by IBM and others under the GPL only on the
terms set out in the GPL; and would not assert rights to
programs distributed by SCO under the GPL except on the
terms set out in the GPL.

115.
   IBM and others reasonably, prudently and foreseeably
relied upon these promises, such as by making contributions
under the GPL and committing resources to open- source
projects.

116.
   SCO knew or should have known that IBM and others would
rely and in fact relied upon SCO's promises and knew or
should have known that those promises would induce and in
fact induced action or forbearance on the part of IBM and
others.

117.
   SCO was and is aware of all material facts
relating to IBM's reliance on SCO's promises including but
not limited to IBM's contributions under the GPL, SCO's
distributions under the GPL and the intent, meaning and
import of the GPL.

118.
   As a result of its reliance upon SCO's promises, IBM has
sustained injuries and is entitled to an award of damages in
an amount to be determined at trial. In addition to an award
of damages, IBM is entitled to declaratory and injunctive
relief, including but not limited to a declaration that SCO
is not entitled to assert proprietary rights with respect to
products distributed by SCO under the GPL except upon the
terms set out in the GPL.




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