Re: "GPL requirement could have a chilling effect on derivative distros"

[peterwn]

Alexander Terekhov wrote:

> > Sigh.  We are talking about a _license_ here.
>
> I'll take it that you've finally groked that in spite of bullshit
> rhetoric spouted by Moglen and his client, IP licenses are contracts.
Are you a lawyer?  Note that Eben Moglen is an Ivy League law professor
and has in the past clerked for a Supreme Court Judge  You are going to
have to come up with something pretty substantial to show that he is
wrong.
>
> http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
>
> "Nature of Suit: 190"
>
> http://www.ndd.uscourts.gov/DNDOpinions/Suits.htm
>
> "190    Other Contract        Contract
>  ...
>  820    Copyrights              Property Rights
>  830    Patent                  Property Rights
>  840    Trademark               Property Rights"
>
The Order says nothing about contracts - some law office or courthouse
assistant would seem to have mis-categorised the case.

Use of someone else's copyrighted works does not on its own lead to the
formation of a legally binding contract - the owner of the works has
merely indicated under what conditions one may use the works. In the
absence of such an indication, use is a breach of copyright.  The owner
is under no obligation to any user of the works, nor is the user of the
works 'accepting' any 'offer' by using the works - he is not
'accepting' the GPL or any other license.  The owner of the works has
not made an offer to the world for people to use his works, he has
merely made the works available for use.  If he wants to use the code
in a manner not covered by the license, he should either contact the
copyright owner or find some other software solution.

If he has problems with using the works, he cannot sue under contract,
becauese he has no contract with the owner of the works - he could
possibly sue under the law of tort.



> -----
> While a party that owns copyright rights is ordinarily entitled to pursue
> infringement claims against any third party who violates them, the courts
> have recognized that the rights and remedies available to copyright
> holders change significantly when the owner elects to give others a
> nonexclusive license to use such property. In that situation, the
> owner/user relationship is fundamentally different. Absent a license, the
> rights of the copyright holder are governed by statutory and common
> law rules applicable to such rights. With a license, however, the terms
> and covenants of the license establish the applicable rules. See
> Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990)
> (in granting a copyright license, the licensor gives up its right to sue
> the licensee for infringement).
To answer the last question first, the licensor does not give up the
right to sue, it is the other party who has to wave the licence around
in the courtroom to show that the suit should fail.  This is Eb
Moglen's view. The only 'fundamental difference' is that the other
party needs to show the court that a licence exists and the terms of
the licence shows that the licensor has indicated that the works can be
used in that way.  The licensor always has the right to sue, but
obviously would not where the user is keeping within the four corners
of the license.  Hence talk about the GPL not being tested in court,
etc, just does not wash.  A copyright owner does not have copyright
stripped off his works merely because the license he issues is
'defective', 'invalid', unconstitutional, etc.  If the license is
'invalid' it does not then give the user any defence to a lawsuit filed
by the owner of the works.  A user who claims in court that a copyright
license is 'invalid' simply shoots himself in the foot - he has thrown
away his key defence against copyright infringement.  If the
prospective user doubts the validity of the GPL or any other license he
should seek clarification from a lawyer, the owner of the works or
should just not use the works.

By the way, while AFAIK Eb Moglen has not won any cases in court, he
has AFAIK a 100% success rate for out of court settlements, because
those who use works contrary to the GPL know or would be advised by
their lawyers that they would lose badly in the courtroom.