Automatic GPL termination

[Philippe Verdy]

> -----Message d'origine-----
> De : Alexander Terekhov [mailto:alexander.terekhov at gmail.com]
> Envoyé : jeudi 13 septembre 2007 10:11
> À : verdy_p at wanadoo.fr
> Cc : Chris Travers; John Cowan; lrosen at rosenlaw.com; dlw; license-
> discuss at opensource.org
> Objet : Re: Automatic GPL termination
> 
> On 9/13/07, Philippe Verdy <verdy_p at wanadoo.fr> wrote:
> > Here ag€ain, CeCILl does not define the operation as "sublicensing".
> 
> It doesn't use that word. But then nor does it use "licensing" word.
> So what? In CeCILL speak,
> 
> Licensor: means the Holder, or any other individual or legal entity,
> who *distributes* the Software under the Agreement.
> (...)
>
> both "licensing" and "sublicensing" is labeled as "distribute".

That's anincorrect interpretation. Even though CeCILL is declared legal both in the English and French version. I read it as "the Holder or legal entity" that has legalrights on the software to provide a licence for the software. But directly, the sublicencing is not directly granted. So the French legal interpretation remains, and it is based on Author's Right (which in France is broader than just the copyright, and covers the moral right as well, and all indirect derived rights, unless they are explicitly given.

> ------
> The licensee may sign a sublicense agreement if the right holder has
> given his consent in the licensing agreement. In a sublicense
> agreement, the roles are reversed: the licensee of the primary
> agreement becomes the licensor in the sublicensing agreement, granting
> rights to the sublicensee. The scope of the sublicense cannot exceed
> the scope of the license agreement. For example, if the licensee is
> authorized only to make and sell patented products, he cannot
> authorize the sublicensee to import the patented products.
> ------
> 
> See also
> 
> http://www.chin.gc.ca/English/Intellectual_Property/Economic_Models/applic
> able_law.html#Sublicensing

This is US or Canadian interpretation. Remember that CeCILL is based on French law (currently the DADVSI which namely covers all "intellectual properties", even if Richard Stallman insists that this is a propaganda term used by Microsoft, this terminology is present in the French legislation).

Regarding the segregation of contract law and copyright law in US, this does not exist in France (and even in US, this separation of applicable law is becoming very fuzzy, with more and more legal decisions interpreting licence agreements as contracts. Like in many other countries, US will integrate progressively the two legal systems (an act is currently being discussed in US to link both rights even more... look at the Congress site, where it is currently discussed in a very short agenda with little time to defend the other positions). In European legislation, contracts and licences are already linked together in many domains, as well as the procedures in case of breach of contract or counterfeighting.

The main idea behind is that even if no licence was explicitly granted, the fact that some intellectual property benefits of a legal protection, there exists at least a defaultcontract between the right holder and the public, accepted by the right protection organisms defending the public position for the general interest. So this applies immediately to everyone, by law, even in absence of an explicit contract between a right holder and a individual user. Counterfeighting is then not only punished by specific laws, but also permits legal compensation based on commercial laws and laws regarding fair competition (and a judge can then accept the requests by a right holder to get compensation if a copyright was abused and used unfairly to get a competitive advantage, even if this did not generate any accountable revenue or transaction).

In France, counterfeighting a copyright is now interpreted like stealing, and depending on the scale of the counterfeighting, exposes not only to commercial laws but also to criminal laws (there's a legal monetary threshold where this becomes possible, which allows a "Court of Instance" to become competent, provided that the value of damages can be proven, and such threshold is also used to determine if the defendant can defend himself or must use the services of a lawyer, and how judiciary fees will be requested and paid by the looser of a legal action). French laws against the act of counterfeighting are very severe since long and define a wide range of penalties up to 10 years of jail in addition to fines.

They do protect right holders a lot (the system of patents also comes from France before being adopted by other countries, however things like "intellectual property" were not patentable until the European legislation was adopted and finally formalized in France with the very broad DADVSI act, which favours a lot the largest right holders like multinational companies, including "Monsanto" despite modified genetic plants are still banned in most cases; we have a situation were these holder rights are recognized but not applicable in France; same thing for medical research and the protection of natural discoveries like identification and inventory of plants, viral genomes, and so on, which are now patentable and subject to commercial contracts, and protection against couterfeighting if the discoveries are made independently and nothing was created because the discovered things exist naturally).

There is still an ongoing battle against patent on software, but this battle is nearly lost (even if patents still don’t exist, most of the advantages and protection offered by patents exist in the DADVSI act to extend into the domain of software). Some of the socialist opponents of the past government wanted to rewrite the DADVSI act, but since the presidential election in France, this is reported ''sine die''. The DADVSI act is now there for long (and has then been integrated as part of the European legislation as the French implementation of the Euroepan EUDC directive, making it more difficult to change now).

So when you consider all this, the exclusive rights of authors are very large (note that in France, some rights are not even transferable and remain exclusive to the authors for their life, and even after, notably in the domain of arts: 70 years after death of authors PLUS periods of wars, something that is less known but effective in France...)