bernstei@hpuxa.ircc.ohio-state.edu (Dan Bernstein) (10/17/89)
What follow are my opinions; I'm not a lawyer. In some states, such as New York, most contracts, licenses, etc. require some compensation. The compensation doesn't have to be tangible, but the traditional ``sold my house for a dollar'' avoids any legal problems. A program placed under GNU Copyleft is licensed without compensation. Hence there is an excellent chance that someone in these states could successfully render Copyleft invalid in court. If the FSF continues blacklisting companies that don't agree with its politics, I wouldn't be surprised to see one of those companies using the compensation laws to throw a wrench into the GNU operation. RMS considers it ``useless'' to discuss this topic, and I can understand his position: it's against his philosophy to receive compensation. But there is a legal solution. Copyleft shouldn't be a full copyright modified by a license; it should be a limited copyright. Most commercial software vendors use software licenses rather than copyrights, since licenses allow arbitrary conditions and can provide fine control over the use and distribution of programs. But unless FSF is trying to exert that control, it should get rid of the extra complexity and use limited copyrights---and thereby avoid questions of compensation. I believe Columbia uses limited copyrights to protect Kermit (quite successfully) for this reason. ---Dan Bernstein, brnstnd@acf10.nyu.edu, bernstei@hpuxa.ircc.ohio-state.edu
andrew@frip.WV.TEK.COM (Andrew Klossner) (10/17/89)
[]
"A program placed under GNU Copyleft is licensed without
compensation. Hence there is an excellent chance that someone
in these states could successfully render Copyleft invalid in
court."
Utterly wrong. The copyleft is not a license, it is the terms of a
"publication" in the parlance of copyright law.
"What follow are my opinions; I'm not a lawyer."
I'm not either, but I've taken the trouble to research this law.
-=- Andrew Klossner (uunet!tektronix!frip.WV.TEK!andrew) [UUCP]
(andrew%frip.wv.tek.com@relay.cs.net) [ARPA]bernstei@hpuxa.ircc.ohio-state.edu (Dan Bernstein) (10/18/89)
In article <4993@orca.WV.TEK.COM> andrew@frip.wv.tek.com writes: > Utterly wrong. The copyleft is not a license, it is the terms of a > "publication" in the parlance of copyright law. The GNU General Public License is, legally and obviously, a license. Hence it must specify compensation. Any pertinent comments? ---Dan Bernstein, brnstnd@acf10.nyu.edu, bernstei@hpuxa.ircc.ohio-state.edu
mcb@ncis.tis.llnl.gov (Michael C. Berch) (10/20/89)
In article <4993@orca.WV.TEK.COM> andrew@frip.wv.tek.com (Andrew Klossner) writes: > [] > "A program placed under GNU Copyleft is licensed without > compensation. Hence there is an excellent chance that someone > in these states could successfully render Copyleft invalid in > court." > > Utterly wrong. The copyleft is not a license, it is the terms of a > "publication" in the parlance of copyright law. > > "What follow are my opinions; I'm not a lawyer." > > I'm not either, but I've taken the trouble to research this law. I also disagree with the assertion inside the quote above, but do not concur with Mr. Klossner's remarks. My analysis is as follows: 1. The Copyleft/GPL is unequivocally a license. The concept of a license for copyrighted material is very well developed in copyright case law, and there is nothing about the Copyleft/GPL that would render it anything other than a license. There are many examples of public licenses for copyrighted material; most of them simply add terms such as requiring identification of the source of the material; forbidding changes except for personal use (i.e., reserving from the license the right to make derivate works); granting the right to copy for noncommercial use only, etc. There is nothing in copyright case law to suggest that these (public) licenses are invalid. 2. Under copyright case law, there is no requirement that a license of copyright be supported by consideration (compensation). This is because it is not a contract but a grant of property rights. Contracts require consideration, but grants do not. This is an elementary and well-settled principle of property law. 3. In the United States, the Copyright Act of 1976 pre-empts all state law that previously dealt with intellectual property rights in the matter subject to the Act (as defined in Sections 102 of the Act). This was the explicit intent of Congress and has been repeatedly upheld by the courts. Therefore, any pre-existing state law that purported to modify the nature or terms of a license of copyright would be pre-empted, and any subsequent state law that did likewise would be inoperative. In either case, I doubt if the state law would operate in any case to render the Copyleft/GPL unenforceable, because it is a grant and not a contract. I don't understand what Mr. Klossner means by "The copyleft is not a license, it is the terms of a 'publication' in the parlance of copyright law"; in copyright law, a work is either published or not published, and if the work is not published, much of the Act does not apply. However, there is no doubt that the GNU programs are published within the meaning of the Act (section 101), so I don't know what the concept of "terms" is supposed to refer to here. I have been a frequent critic of FSF and the political and philosophical underpinnings of Project GNU, and more recently of Richard Stallman's attempts to use publicly-funded networks for partisan political advocacy, but I find nothing in the GNU Public License that would render it unenforceable under copyright law or federal or state common law. -- Michael C. Berch Member of the California Bar mcb@tis.llnl.gov / uunet!tis.llnl.gov!mcb