[License-discuss] Companies that encourage license violations
I'm not sure if this is the right forum for this, if not I'd greatly appreciate a pointer to the right one. So I ran into a situation where a company isn't training their employees very well and is causing all sorts of confusion and in some cases outright license/copyright violations through what seems to be just simple ignorance. Company in question has a popular piece of software. They have a store where developers can publish extensions and addons to this software. It's a huge success with thousands of addons and sales volumes probably into the millions per month. Some of these addons are themselves open source. The majority of the time the authors of these are not including the open source license. Which I think is legally ok, I'm guessing it actually just creates a dual license, but not an attorney so not sure on this. The problem is that other addons are including these open source addons. Literally just copying them into their own distribution. And they are not including a copy of the license. Most of the time not even aware of the violation because the original author didn't include the license either. The kicker is that the company has a practice where they decline your addon if they know it has another addon, even if it's open source. So publishers are just including these other addons in a non standard way so that the company won't notice and won't decline their addon. If this seems confusing it's because it is. The end result here is conservatively thousands of these addons being distributed with open source libraries that don't have licenses attached. Just including the license in a certain way (where the employees reviewing the addon can notice it) will get it declined. I'm interested in bringing attention to this in a way that makes them change and looking for suggestions on the best way to do that. But I don't want to cause any trouble for the people that have submitted all of these addons that are in violation. Yes they should know better, but they wouldn't be in the position they are if the company didn't have such a crazy policy. ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On Fri, Aug 21, 2015 at 3:19 PM, Chris Ochs wrote: > Some of these addons are themselves open source. The majority of the time > the authors of these are not including the open source license. Which I > think is legally ok, I'm guessing it actually just creates a dual license, > but not an attorney so not sure on this. Snip: Some of these addons are themselves open source. The majority of the time the authors of these are not including the open source license. Which I think is legally ok, I'm guessing it actually just creates a dual license, but not an attorney so not sure on this. How do you know they are 'open source' if they don't include an open source license? Are the completely original works, or do they contain works from others that are distributed under open source licenses? ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
I know they are open source because the authors have a website or github repo with the open source license. They just aren't including that license in the copy that they release through this company. On Wed, Aug 26, 2015 at 9:38 AM, Kevin Fleming wrote: > > On Fri, Aug 21, 2015 at 3:19 PM, Chris Ochs wrote: > >> Some of these addons are themselves open source. The majority of the >> time the authors of these are not including the open source license. Which >> I think is legally ok, I'm guessing it actually just creates a dual >> license, but not an attorney so not sure on this. > > > > Snip: > Some of these addons are themselves open source. The majority of the time > the authors of these are not including the open source license. Which I > think is legally ok, I'm guessing it actually just creates a dual license, > but not an attorney so not sure on this. > > How do you know they are 'open source' if they don't include an open > source license? Are the completely original works, or do they contain works > from others that are distributed under open source licenses? > > ___ > License-discuss mailing list > License-discuss@opensource.org > https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > > ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On Wed, Aug 26, 2015 at 11:54 AM, Chris Ochs wrote: > I know they are open source because the authors have a website or github > repo with the open source license. They just aren't including that > license in the copy that they release through this company. If they are the copyright holders to the code on Github, they may also release it without a license through the company. IANAL, TINLA, etc. - Michael Bernstein ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Right, this is potentially a 'dual-license' scenario, where the copyright holders distribute the code under two (or more) distinct licenses, in separate distributions. If you receive the code under a non-open-source license, the presence of the same (or similar) code in another location under an open source license isn't necessarily relevant; you got the code with an attached license, so its terms apply to you. If you obtain the code via other means, with an attached open source license, then that license's terms apply to you. This definitely sounds like an unnecessarily complicated situation, but in the end, you can only use the code under the license terms that were attached when you received it. If no license was attached, then you probably don't have any rights to use it at all. On Mon, Aug 31, 2015 at 6:23 AM, Michael R. Bernstein < mich...@fandomhome.com> wrote: > > On Wed, Aug 26, 2015 at 11:54 AM, Chris Ochs wrote: > >> I know they are open source because the authors have a website or github >> repo with the open source license. They just aren't including that >> license in the copy that they release through this company. > > > If they are the copyright holders to the code on Github, they may also > release it without a license through the company. > > IANAL, TINLA, etc. > > - Michael Bernstein > > ___ > License-discuss mailing list > License-discuss@opensource.org > https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > > ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 8/31/2015 5:42 PM, Kevin Fleming wrote: > but in the end, you can only use the code under the license terms that > were attached when you received it. If no license was attached, then > you probably don't have any rights to use it at all. I think this statement is a fallacy, but I'm happy to hear other opinions. A license attaches to the intangible copyright, not to the tangible copy of the work you received. So as long as I can show that the same copyrighted work was available under a license, and that I am in compliance with the license, then I am a licensed user no matter where I got my copy of the work. The dual licensing scheme works because of the lack of desire to comply with the terms of the alternate license (going both ways, lack of interest in paying or lack of interest in meeting the conditions of the FOSS license), not because of where you got your copy of the code. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Pamela Chestek scripsit: > I think this statement is a fallacy, but I'm happy to hear other > opinions. A license attaches to the intangible copyright, not to the > tangible copy of the work you received. So as long as I can show that > the same copyrighted work was available under a license, and that I am > in compliance with the license, then I am a licensed user no matter > where I got my copy of the work. That can't be right. Consider a work available under GPL+proprietary terms, where you get to do non-GPL things if you have paid. Then it would not be enough to show that the work was available under a proprietary license to allow you to download it and do those things. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org How they ever reached any conclusion at all is starkly unknowable to the human mind.--"Backstage Lensman", Randall Garrett ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
John Cowan replied in response to Pam Chestek's comment: > Consider a work available under GPL+proprietary terms, where you get to do > non-GPL things if you have paid. Then it would not be enough to show that > the work was available under a proprietary license to allow you to download > it and do those things. What non-GPL things are you talking about? Probably I'm just confused by the distinction you are trying to make with Pam. You've driven me into litigation fantasies The author of a work can license it any confusing and profitable way she wants. She can dual- and triple-license it. She can even permit her customers to avoid conditions of the GPL under which she also licensed her original work. But a more general GPL work available publicly (e.g., Linux) is and remains under the GPL forever. Restricting copyright for that GPL work (or derivative works thereof) is not allowed by the author of the original GPL work. So says the GPL. It becomes confusing when a company adds *incompatible* proprietary terms to the GPL for a publicly available work. Is this a contract that any company can negotiate with its customers? Is that ever effective at restricting GPL freedoms? I think Pam is correct: "A license attaches to the intangible copyright, not to the tangible copy of the work you received." This means that, if you can find a GPL-licensed work in the wild, help yourself to it under the terms of the GPL even if you also bought a proprietary license somewhere. That is not a *copyright license* violation. But I'd also try to avoid *contractual* litigation by never agreeing to *restrictive* proprietary contracts for GPL software. Don't contract away your free software. I've never seen anyone actually try to do that, which is why I'm confused by John Cowan's comment. /Larry -Original Message- From: John Cowan [mailto:co...@mercury.ccil.org] Sent: Saturday, September 5, 2015 11:25 AM To: license-discuss@opensource.org Subject: Re: [License-discuss] Companies that encourage license violations Pamela Chestek scripsit: > I think this statement is a fallacy, but I'm happy to hear other > opinions. A license attaches to the intangible copyright, not to the > tangible copy of the work you received. So as long as I can show that > the same copyrighted work was available under a license, and that I am > in compliance with the license, then I am a licensed user no matter > where I got my copy of the work. That can't be right. Consider a work available under GPL+proprietary terms, where you get to do non-GPL things if you have paid. Then it would not be enough to show that the work was available under a proprietary license to allow you to download it and do those things. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org How they ever reached any conclusion at all is starkly unknowable to the human mind.--"Backstage Lensman", Randall Garrett ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Lawrence Rosen scripsit: > What non-GPL things are you talking about? Insofar as I can reconstruct my thinking of last night (post in haste, repent at leisure), I was thinking of the ordinary proprietary opt-out clause letting you incorporate Yoyodyne's library into your binary-only program. I suppose that Yoyodyne could require you to keep the proprietary-licensed copy to yourself, even though it's bit-for-bit identical with the GPLed version and has a common origin. > But a more general GPL work available publicly (e.g., Linux) is and > remains under the GPL forever. In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS PERMITTED and then take it down before prescription kicks in, the fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't seem to help someone I sue for trespass, except through the exceedingly dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). Doubtless if they were actually in transit when I revoked the permission > It becomes confusing when a company adds *incompatible* proprietary > terms to the GPL for a publicly available work. Is this a contract that > any company can negotiate with its customers? Is that ever effective > at restricting GPL freedoms? I admit that such a thing is economically improbable, but I don't see what grounds a court would have for treating it as voidable, never mind void. (I'm assuming that any contract under the GPL only kicks in when you exploit a GPL right; otherwise the pre-announced GPL would be superseded by the proprietary contract anyway.) > But I'd also try to avoid *contractual* litigation by never agreeing > to *restrictive* proprietary contracts for GPL software. Don't contract > away your free software. I've never seen anyone actually try to do that, > which is why I'm confused by John Cowan's comment. I haven't heard of it either, but that may only be only because people don't usually announce that they've been snookered. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org Do I contradict myself? Very well then, I contradict myself. I am large, I contain multitudes. --Walt Whitman, Leaves of Grass ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Pam, thanks for bringing your considerable legal attention to this, as I find it fascinating :-) The genesis of my statement (which I purposely left ambiguous because IANAL and IANYL and many here are) is that a set of source files that do not have any copyright/license statements included and a set that do have such statements included could easily be considered *different works*, because they contain different content. The content difference may be immaterial to the usage of the code (it certainly doesn't affect compilation or execution of the code), but it's still different. It might even be reasonable to claim that the version with the statements is a derivative work of the one without the statements, even if produced by the copyright holder(s). Given that, if someone has a copy of the version without such statements, I'd personally recommend (and certainly do in my day job) that finding another copy elsewhere that has such statements is immaterial. This usually doesn't matter when the discussion occurs before any potentially infringing activity has occurred, since we can just tell the user to go download the copy with the license statements, but after the fact I'd be quite surprised that demonstrating the existence of the other copy would be sufficient. On Sun, Sep 6, 2015 at 1:03 PM, John Cowan wrote: > Lawrence Rosen scripsit: > > > What non-GPL things are you talking about? > > Insofar as I can reconstruct my thinking of last night (post in > haste, repent at leisure), I was thinking of the ordinary proprietary > opt-out clause letting you incorporate Yoyodyne's library into your > binary-only program. I suppose that Yoyodyne could require you to keep > the proprietary-licensed copy to yourself, even though it's bit-for-bit > identical with the GPLed version and has a common origin. > > > But a more general GPL work available publicly (e.g., Linux) is and > > remains under the GPL forever. > > In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a > leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS > PERMITTED and then take it down before prescription kicks in, the > fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't > seem to help someone I sue for trespass, except through the exceedingly > dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). > Doubtless if they were actually in transit when I revoked the > permission > > > It becomes confusing when a company adds *incompatible* proprietary > > terms to the GPL for a publicly available work. Is this a contract that > > any company can negotiate with its customers? Is that ever effective > > at restricting GPL freedoms? > > I admit that such a thing is economically improbable, but I don't see what > grounds a court would have for treating it as voidable, never mind void. > (I'm assuming that any contract under the GPL only kicks in when you > exploit a GPL right; otherwise the pre-announced GPL would be superseded > by the proprietary contract anyway.) > > > But I'd also try to avoid *contractual* litigation by never agreeing > > to *restrictive* proprietary contracts for GPL software. Don't contract > > away your free software. I've never seen anyone actually try to do that, > > which is why I'm confused by John Cowan's comment. > > I haven't heard of it either, but that may only be only because people > don't usually announce that they've been snookered. > > -- > John Cowan http://www.ccil.org/~cowanco...@ccil.org > Do I contradict myself? > Very well then, I contradict myself. > I am large, I contain multitudes. > --Walt Whitman, Leaves of Grass > ___ > License-discuss mailing list > License-discuss@opensource.org > https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
John Cowan wrote about the word "forever" [1]: > In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS PERMITTED and then take it down before prescription kicks in, the fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't seem to help someone I sue for trespass, except through the exceedingly dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). Doubtless if they were actually in transit when I revoked the permission Bending the words to suit my fancy, a GPL program intentionally posted by its author somewhere on the web and freely copied by others is thereafter "in transit." I don't see how any author can successfully revoke a valid GPL license for existing copies that she already placed in the wild. Again you've sent me into litigation fantasies When is this ever a problem? /Larry [1] Forever = "Single term of life plus 70 years (but if work is made for hire or anonymous or pseudonymous, 95 years from the date of publication or 120 years from date of creation, whichever ends first)." https://copyright.cornell.edu/resources/publicdomain.cfm -Original Message- From: John Cowan [mailto:co...@mercury.ccil.org] Sent: Sunday, September 6, 2015 10:04 AM To: lro...@rosenlaw.com; license-discuss@opensource.org Subject: Re: [License-discuss] Companies that encourage license violations ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
I'm not an attorney but I'd think that a copyright itself cannot be copyright protected. And I would also think that no judge in the world is going to hand out damages for something like this where the substantive difference is absolutely zero. Plus, the common case for most newer open source projects is that you don't have notices on each file. As a business person I look at how likely is something in the real world. Sure an attorney can try to make any argument they want, but in order to make that argument someone has to pay them to get all the way to court with it. IMO that's why there is often a lack of legal precedence for stuff that seems obvious. Because it is obvious and no one is going to pay good money to be told the obvious (or at least very rarely so) On Tue, Sep 8, 2015 at 2:14 PM, Kevin Fleming wrote: > Pam, thanks for bringing your considerable legal attention to this, as I > find it fascinating :-) > > The genesis of my statement (which I purposely left ambiguous because > IANAL and IANYL and many here are) is that a set of source files that do > not have any copyright/license statements included and a set that do have > such statements included could easily be considered *different works*, > because they contain different content. The content difference may be > immaterial to the usage of the code (it certainly doesn't affect > compilation or execution of the code), but it's still different. It might > even be reasonable to claim that the version with the statements is a > derivative work of the one without the statements, even if produced by the > copyright holder(s). > > Given that, if someone has a copy of the version without such statements, > I'd personally recommend (and certainly do in my day job) that finding > another copy elsewhere that has such statements is immaterial. This usually > doesn't matter when the discussion occurs before any potentially infringing > activity has occurred, since we can just tell the user to go download the > copy with the license statements, but after the fact I'd be quite surprised > that demonstrating the existence of the other copy would be sufficient. > > On Sun, Sep 6, 2015 at 1:03 PM, John Cowan wrote: > >> Lawrence Rosen scripsit: >> >> > What non-GPL things are you talking about? >> >> Insofar as I can reconstruct my thinking of last night (post in >> haste, repent at leisure), I was thinking of the ordinary proprietary >> opt-out clause letting you incorporate Yoyodyne's library into your >> binary-only program. I suppose that Yoyodyne could require you to keep >> the proprietary-licensed copy to yourself, even though it's bit-for-bit >> identical with the GPLed version and has a common origin. >> >> > But a more general GPL work available publicly (e.g., Linux) is and >> > remains under the GPL forever. >> >> In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a >> leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS >> PERMITTED and then take it down before prescription kicks in, the >> fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't >> seem to help someone I sue for trespass, except through the exceedingly >> dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). >> Doubtless if they were actually in transit when I revoked the >> permission >> >> > It becomes confusing when a company adds *incompatible* proprietary >> > terms to the GPL for a publicly available work. Is this a contract that >> > any company can negotiate with its customers? Is that ever effective >> > at restricting GPL freedoms? >> >> I admit that such a thing is economically improbable, but I don't see what >> grounds a court would have for treating it as voidable, never mind void. >> (I'm assuming that any contract under the GPL only kicks in when you >> exploit a GPL right; otherwise the pre-announced GPL would be superseded >> by the proprietary contract anyway.) >> >> > But I'd also try to avoid *contractual* litigation by never agreeing >> > to *restrictive* proprietary contracts for GPL software. Don't contract >> > away your free software. I've never seen anyone actually try to do that, >> > which is why I'm confused by John Cowan's comment. >> >> I haven't heard of it either, but that may only be only because people >> don't usually announce that they've been snookered. >> >> -- >> John Cowan http://www.ccil.org/~cowanco...@ccil.org >> Do I contradict myself? >> Very well then, I contradict myself. >> I am large, I contain multitudes. >> --Walt Whitman, Leaves of Grass >> ___ >> License-discuss mailing list >> License-discuss@opensource.org >> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss >> > > > ___ > License-discuss mailing list > License-discuss@opensource.org > https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > >
Re: [License-discuss] Companies that encourage license violations
Lawrence Rosen scripsit: > Bending the words to suit my fancy, a GPL program intentionally posted > by its author somewhere on the web and freely copied by others is > thereafter "in transit." I don't see how any author can successfully > revoke a valid GPL license for existing copies that she already placed > in the wild. There might be practical difficulties about notifying the relevant licensees or potential licensees, leading to the estoppel scenario I mentioned, but licenses are in general fully revocable by the owner. Indeed, courts have held that even words like "I hereby grant you the permanent right to [whatever] on my property" create only a license, not an easement (a servitude to the distinguished civilians on this list). > Again you've sent me into litigation fantasies When is this ever a > problem? Consider the author John M. Ford, who died leaving a substantial body of work, much of it excellent science fiction. Alas, he died intestate, and control of his work has fallen into the hands of his family, who deeply disapproved of him, his life, and his work, and are determined to see it perish in oblivion. You would cry too if it happened to you. (Well, *you* wouldn't, Larry, because you know better than to die intestate, but in general, it's a problem.) -- John Cowan http://www.ccil.org/~cowanco...@ccil.org The Imperials are decadent, 300 pound free-range chickens (except they have teeth, arms instead of wings, and dinosaurlike tails). --Elyse Grasso ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/5/2015 2:24 PM, John Cowan wrote: > Pamela Chestek scripsit: > >> I think this statement is a fallacy, but I'm happy to hear other >> opinions. A license attaches to the intangible copyright, not to the >> tangible copy of the work you received. So as long as I can show that >> the same copyrighted work was available under a license, and that I am >> in compliance with the license, then I am a licensed user no matter >> where I got my copy of the work. > That can't be right. Consider a work available under GPL+proprietary > terms, where you get to do non-GPL things if you have paid. Then it would > not be enough to show that the work was available under a proprietary > license to allow you to download it and do those things. > Sure I could, if it was a license that was offered to me and I complied with the terms (including paying); my performance manifested my acceptance of the offer. Same with a FOSS license, it is an offer and I accept through performance. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/6/2015 1:03 PM, John Cowan wrote: > Lawrence Rosen scripsit: > >> What non-GPL things are you talking about? > Insofar as I can reconstruct my thinking of last night (post in > haste, repent at leisure), I was thinking of the ordinary proprietary > opt-out clause letting you incorporate Yoyodyne's library into your > binary-only program. I suppose that Yoyodyne could require you to keep > the proprietary-licensed copy to yourself, even though it's bit-for-bit > identical with the GPLed version and has a common origin. Well, since you can't (or don't want to) comply with the copyleft provision, you can't rely on the FOSS license, so you have to comply with whatever other license you can get, which may include not disclosing the code. Although that seems kind of silly to require, since the code is public. > >> But a more general GPL work available publicly (e.g., Linux) is and >> remains under the GPL forever. > In my non-lawyer opinion, the irrevocability clause of GPL3 hasn't got a > leg to stand on. If I put up a sign on my land saying PUBLIC ACCESS > PERMITTED and then take it down before prescription kicks in, the > fact that the sign also said THIS SIGN WILL NOT BE TAKEN DOWN doesn't > seem to help someone I sue for trespass, except through the exceedingly > dodgy mechanism of equitable estoppel (or quasi-contract in Roman lands). > Doubtless if they were actually in transit when I revoked the permission Doesn't that mean that the word "irrevocable" is meaningless? We don't like words without meaning in contracts, especially one so central to the entire premise of free software. > >> It becomes confusing when a company adds *incompatible* proprietary >> terms to the GPL for a publicly available work. Is this a contract that >> any company can negotiate with its customers? Is that ever effective >> at restricting GPL freedoms? > I admit that such a thing is economically improbable, but I don't see what > grounds a court would have for treating it as voidable, never mind void. > (I'm assuming that any contract under the GPL only kicks in when you > exploit a GPL right; otherwise the pre-announced GPL would be superseded > by the proprietary contract anyway.) If you're not getting any benefit not already available under the GPL then I would argue the proprietary contract is void for lack of consideration. > >> But I'd also try to avoid *contractual* litigation by never agreeing >> to *restrictive* proprietary contracts for GPL software. Don't contract >> away your free software. I've never seen anyone actually try to do that, >> which is why I'm confused by John Cowan's comment. > I haven't heard of it either, but that may only be only because people > don't usually announce that they've been snookered. Java BCL, anyone? Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/8/2015 5:14 PM, Kevin Fleming wrote: > The genesis of my statement (which I purposely left ambiguous because > IANAL and IANYL and many here are) is that a set of source files that > do not have any copyright/license statements included and a set that > do have such statements included could easily be considered *different > works*, because they contain different content. The content difference > may be immaterial to the usage of the code (it certainly doesn't > affect compilation or execution of the code), but it's still > different. It might even be reasonable to claim that the version with > the statements is a derivative work of the one without the statements, > even if produced by the copyright holder(s). Interesting theory. I would say not though, because the addition of the copyright/license statements are not original enough to make the new work with the addition or omission a derivative work, and also for the reasons you mention, that they don't actually affect the work. It would be like saying that a second edition, with new title page listing the new year of publication and different publisher, would be a derivative work of, or a different work from, the first edition. Without doing any legal research (which is guaranteed to get me into trouble), my guess is that courts have decided that insignificant changes don't make it a new work.[1] > Given that, if someone has a copy of the version without such > statements, I'd personally recommend (and certainly do in my day job) > that finding another copy elsewhere that has such statements is > immaterial. This usually doesn't matter when the discussion occurs > before any potentially infringing activity has occurred, since we can > just tell the user to go download the copy with the license > statements, but after the fact I'd be quite surprised that > demonstrating the existence of the other copy would be sufficient. This is one of my favorite subjects, whether to have a license you need to know that it existed at the time you copied or not. I don't think so, the copyright owner put the work out there with a promise not to sue, so I don't know why I would need to be aware of the promise to claim the benefit of it. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com [1] Ok, I lied. It rang a bell and I looked it up. Not quite on all fours but in the recent Creative Commons case where the photographer argued that cropping his photo created a derivative work, the court said "Any discernible cropping appears to be 'so minor and insubstantial that as a matter of law it falls within that degree of latitude afforded licensees to alter a copyrighted work to suit their style or the medium in which the work is presented.'" /Drauglis v. Kappa Map Group, LLC,/ 2015 U.S. Dist. LEXIS 108992, *21 (D.D.C. Aug. 18, 2015). ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Pamela Chestek scripsit: > Doesn't that mean that the word "irrevocable" is meaningless? We don't > like words without meaning in contracts, especially one so central to > the entire premise of free software. It's my view (and I'm not alone in this) that the vast majority of free software licenses are not contracts at all, and are like licenses to enter upon land: that is, they are permissions by the owner to do things that would otherwise be forbidden to all by the owner's proprietary rights in the property. As such, they are not supported by consideration and can be revoked at the will of the licensor. Most proprietary licenses are not like this: the license is provided in exchange for obvious consideration in the form of money paid by the licensee. The licenses written by Larry truly are contracts, and are exempt from this view of mine. > Java BCL, anyone? Who knows what secret source, or sauce, might underlie the current binary releases of Java? (The Shadow knows.) IANA, TINLA, but this is not UPL either. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org Yes, chili in the eye is bad, but so is your ear. However, I would suggest you wash your hands thoroughly before going to the toilet. --gadicath ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Pamela Chestek scripsit: > This is one of my favorite subjects, whether to have a license you need > to know that it existed at the time you copied or not. I don't think so, > the copyright owner put the work out there with a promise not to sue, so > I don't know why I would need to be aware of the promise to claim the > benefit of it. On my view, of course, you don't need to know, because meeting of the minds is a contract idea, and licenses are not contracts. The license is a bit more than a covenant not to sue, though: it's affirmative permission to do things, not merely a promise (which may or may not rise to a contract) not to try to punish the doers of those things. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org A male Jang appeared at my side. "Get a grip on yourself," he said. "Get a grip on your graks," I suggested. --Tanith Lee, Drinking Sapphire Wine ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
On 9/16/2015 11:32 PM, John Cowan wrote: >> Doesn't that mean that the word "irrevocable" is meaningless? We don't >> like words without meaning in contracts, especially one so central to >> the entire premise of free software. > It's my view (and I'm not alone in this) that the vast majority of free > software licenses are not contracts at all, and are like licenses to > enter upon land: that is, they are permissions by the owner to do things > that would otherwise be forbidden to all by the owner's proprietary rights > in the property. As such, they are not supported by consideration and > can be revoked at the will of the licensor. Most proprietary licenses > are not like this: the license is provided in exchange for obvious > consideration in the form of money paid by the licensee. Without entering into that quagmire (other than to quote Heather Meeker, "The Free Software Foundation has long taken the position that open source licenses are licenses rather than contracts -- however, this can be misleading because the two are not mutually exclusive. Most licensing contracts are both conditional licenses and contracts"), my use of the word "contract" was simply inapt. The principle applies in the interpretation of all types legal documents. Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 pam...@chesteklegal.com www.chesteklegal.com ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
Pamela Chestek scripsit: > Without entering into that quagmire [...] my use of the word "contract" > was simply inapt. The principle applies in the interpretation of all > types legal documents. Sure. But if it is not meaningless, what does it mean? Since the right of an owner to revoke a bare license is inherent, it must be a promise not to exercise that right, and on what meeting of the minds, what consideration is that promise founded? Looks like a nudum pactum to me. -- John Cowan http://www.ccil.org/~cowanco...@ccil.org Is it not written, "That which is written, is written"? ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] Companies that encourage license violations
John, an open source license is not a nudum pactum. Consideration abounds in FOSS. Paraphrasing Wikipedia (the easy source for all law references): The Jacobsen v. Katzer case is noteworthy in United States copyright law because Courts clarified the enforceability of licensing agreements on both open-source software and proprietary software. The case established the rule of law that terms and conditions of an Artistic License are "enforceable copyright conditions". /Larry -Original Message- From: John Cowan [mailto:co...@mercury.ccil.org] Sent: Friday, September 18, 2015 1:01 PM To: license-discuss@opensource.org Subject: Re: [License-discuss] Companies that encourage license violations Pamela Chestek scripsit: > Without entering into that quagmire [...] my use of the word "contract" > was simply inapt. The principle applies in the interpretation of all > types legal documents. Sure. But if it is not meaningless, what does it mean? Since the right of an owner to revoke a bare license is inherent, it must be a promise not to exercise that right, and on what meeting of the minds, what consideration is that promise founded? Looks like a nudum pactum to me. -- John Cowan <http://www.ccil.org/~cowan> http://www.ccil.org/~cowan <mailto:co...@ccil.org> co...@ccil.org Is it not written, "That which is written, is written"? ___ License-discuss mailing list <mailto:License-discuss@opensource.org> License-discuss@opensource.org <https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
