Subject: Re: GPL Issue
From: John Cowan <cowan@mercury.ccil.org>
Date: Wed, 22 Sep 2010 13:40:20 -0400

dtemeles@nvalaw.com scripsit:

> I am aware of the Jacobsen case.  Jacobsen supports my point rather
> than contradicting it.

I don't think Jacobsen has anything to do with the point at hand, since
it was (as you note) highly specific.

> This means that open source licenses will be interpreted through the
> lens of a state by state, circuit by circuit analysis of contract law -
> not a "bare license" analysis that automagically exempts open source
> licenses from ordinary contract law principles.

I don't think anyone with a modicum of legal knowledge (and that means
someone like me, not someone like Moglen) thinks anything else.

> [W]e have a complete lack of certainty on what will happen with a
> given license and a given use in a given court.

We certainly do, which is why statements like "there is no such thing as
a bare license" are overreaching.  It may not be prudent to advise your
client to rely on an unsubstantiated legal theory, but it is certainly
not prudent to advise your client that such theories are worthless and
they can disregard public licenses with impunity.

> 3.  The open source community would be well served if we focus more
> attention on developing sound enforcement provisions and mechanisms
> so that the licensors can seek and obtain relevant redress against
> infringers regardless of whether the court du jour determines that the
> use is a breach of the license (breach of contract), or a use outside
> the scope of the license (copyright infringement).

This seems to me to be an attempt to solve a non-problem.  Open and
contumacious infringers in the style of people who sell bootleg
proprietary software seem to be extraordinarily rare.  As far as anyone
knows, most infringers are either inadvertently so (and are willing to
comply when informed of their obligations) or people who believe that
specific technical circumstances excuse them from those obligations.

Of course, there may be and doubtless are people who infringe in secret,
incorporating GPLed code into their binary-only products, but there is
little hope of catching them anyway.

> If one rejects the unilateral license agreement applicable to
> open source software that the individual downloads, then clearly
> the individual has no license to use the software and any use that
> violates the author's exclusive rights under 17 USC 106 would constitute
> infringement (unless excused elsewhere in the code or unless sufficient
> facts exist to create an implied license).

Assuming that by "use" you mean "execute", and not "reuse in a collective
or derivative work", I don't see any reason to believe that.  If I
obtain a copy of a work from the author, I can use the work as I please,
provided I don't presume on any of the specific rights in the copyright
bundle, just as if I had obtained a pickle from a pickle manufacturer
(within the general bounds of legal behavior, etc.)

Proprietary software publishers attempt to create a situation in which
copies of their programs are never sold, but only (contractually) licensed
to their users; hence their emphasis on "no use without a license".
But this has nothing to do with copies of open-source software, which
are both sold and given away free, putting the buyer/donee in the usual
position of the owner of a copy of a copyrighted work.

> IAAL, but I am not your lawyer and this is not legal advice.

IANAL and TINLA, but it is not UPL either.

-- 
What is the sound of Perl?  Is it not the       John Cowan
sound of a [Ww]all that people have stopped     cowan@ccil.org
banging their head against?  --Larry            http://www.ccil.org/~cowan