Subject: RE: Automatic GPL termination
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Wed, 12 Sep 2007 18:15:40 +0200

 Wed, 12 Sep 2007 18:15:40 +0200
There's a big difference: if the licence that subusers got from the
distributor is terminated at the distributor, it does not invalidate their
own licence, given that the effective licence was in fact granted by the
authors, not by the distributor (who was just a proxy acting in the name of
the authors).

Subusers are definitely not sublicensees with the GPL. There's no hierarchy
of licences, the relation tree is all flat with the GPL, directly from the
authors to all users. If a distributor licence is terminated, this has a
minimum effect on all the rest of the users community.

But if the distributor has volated his licenced and disguised the licence in
a way such that users were thinking he was not a proxy acting in the name of
the authors, then the distributor is guilty of falsification, and this is a
criminal offense whose effects is independent of the termination of its
licencing agreement from the author to the distributor.

So the GPL automatic termination does not prevent further actions against
the illegal distributor that has abused the GPL license, especially if the
distributor has conveyed the program using a falsified licence and disguized
the copyrights or required illegitimate restrictions from its users.

(The users will automatically gain the benefit of their GPL rights even if
the distributor has illegally restricted these rights by assigning the
copyright to himself or using other limitating measures to prevent them the
full benefit of their rights). If the distributor has sent a falsified
licence, he is criminaly chargeable by users, and even if the distributor
licence is fully terminated and he has stopped conveying the program, he
remains directly responsible of its past actions and falsifications: he must
still give back their money to all its past users that got a copy of the
covered work from him...

The only effective termination is the termination of all the rights of the
distributor, but his legal obligations (and all legal warranties) are still
valid and remain for all things related to the covered work that he has
directly abused (the distributor however is not responsible if the author
had violated a copyright or patent).

Becoming a distributor is not without long term risks. The only way for
distributors to remain in legality is to strictly respect the GPL, and so
respect the copyright assignments, and provide a authorized and conforming
copy of the licence to its users.

Suppose that your DSL Internet provider has sold to you a DSL modem-router
to connect ot its services, but has crippled the firmware in a way that
presented it as the copyright owner for the router, and prevented its users
of the benefit of the GPL, including the rights to install updates and
modification of the internal GPL kernel. Then this distributor refuses to
honor the GPL and his GPL licence is terminated according to the GPL. Then
this does not terminate the right of the DSL subscribers to continue using
the DL router they paid for. Even if the distributor stops distributing this
modem-router, those users will keep their legal rights against the
distributor to benefit of the GPL.

If the provider still refuses, those users can still group and perform a
legal action AFTER the termination of the distributor licence to get this
benefit. And as soon as the users know that the GPL was abused, they can
claim their rights according to the GPL, to modify the kernel, install
modified firmwares. The distributor must give them all the technical keys to
allow this, and must still provide the necessary sources that allow
modifying the GPL kernel of the router. The distributor must NOT make any
action against users attempting to use modified kernels. The GPL says they
have the full right to do that for every covered part of the router
firmware, or linked with it.

And this will persist for very long: the right to get the sources and modify
the kernel will remain for at least 3 years starting at the date where the
user received a vlid licence of the GPL stating these rights. The best that
the distributor can do, to accelerate this process if to provide them
publicly with a copy of the original licence (the right to distribute the
covered work is terminated, not the obligation to inform users of their
legal rights, and remove all possible copyright restrictions that he has
illegally stated on the affected product.)

Don't assume that the term "Termination" covers everything. Not all is
terminated, and notably, if all rights are removed, most obligations remain,
including all legal obligations.

Another important thing to consider is that users of the terminated
distributor can know that they are no longer bound to the distributor if he
has stated so. But they remain bound to the terms of the original licence
from the legitimate authors.

Suppose you have bought a product from a distributor whose licence was
terminated. Your existing GPL licence is not terminated, in fact, since the
beginning you were bound to the terms of the GPL licence if you did know
it.But if the distributor has hidden the information to you for long, you
are not directly guilty of the damages, but may be liable for the damages
that you have made by ignoring your rights. For this reason, if a copyright
owner starts a suite against you or claims royaltees, you must immediately
ask for compensation to the distributor, even if the distributor has his
licence terminated.

> -----Message d'origine-----
> De : Lawrence Rosen [mailto:lrosen@rosenlaw.com]
> Envoyé : mercredi 12 septembre 2007 17:41
> À : verdy p@wanadoo.fr; 'dlw'; license-discuss@opensource.org
> Objet : RE: Automatic GPL termination
> 
> Philippe,
> 
> How does this differ from a sublicensing regime, where the license or its
> sublicenses are terminable upon the failure of the licensee to obey
> license
> conditions?