conducting a sane and efficient GPLv3, LGPLv3 Review

[Alexander Terekhov-3]

On 8/2/07, Walter van Holst <w.van.holst@...> wrote:
[...]
priori. Which is a valid point, IMAO. BTW, I find it somewhat
misleading that you call Hören an appelate judge (which he is), the
article clearly states that it is written in his role as visiting
professor.

You may peek his roles as you see fit, I guess. I've just looked at
his profile at WIPO

-----
EXPERIENCE IN INTELLECTUAL PROPERTY

Judge at the Court of Appeal in Düsseldorf within the Trademark &
Copyright Senate;
Professor in Intellectual Property Law at the University of Muenster;
Member, Task Force Group on Intellectual Property Law, European
Commission/DG XIII.
-----

and picked the first item.

regards,
alexander.

[Rick Moen]

Quoting Ben Tilly (btilly@...):

> Which raises an interesting question.  Suppose that I was a judge in
> the 7th circuit.  Am I bound by this part of the opinion even though
> it depends on an incorrect understanding of the facts?

Pardon my Latin:  You're going to need to look up "Stare decisis et non
quieta movere."  Please note that it has little or no application in US
civil law, which would apply in copyright cases.  (At least I hope so;
e.g., a murder trial based in copyright law sounds like one of the plots
Corey Doctorow left on the floor.)

[Lawrence Rosen]

Walter van Holst wrote:
> Interesting and possibly flawed analysis, but that is not the point here.
> First of all I have to apologize for construing an apaprant American
> concept under Dutch law without hesitating to think about what you might
> have meant. The doctrine of misuse as you know it is not a doctrine I am
> familiar with under Dutch law or any other continental European law system
> I know of. We do have a generic 'misuse of right' doctrine, the GPL would
> clearly fall outside its scope. You may have or not have a point here
> about misues under American copyright law (I'd be delighted to hear
> Lawrence's opinion on this).

My opinion on this topic isn't worth any more than anyone else's, and
certainly not as much as a judge's opinion. :-)

FWIW, I do agree with the analysis that requiring the disclosure of source
code of independent works that are combined with GPL-licensed software into
collective works would be copyright misuse under US law. It would be fun to
argue it in court, but I haven't seen any case where a GPL copyright owner
has dared to risk such a lawsuit to try to force the disclosure of someone
else's independently-written source code that is NOT a derivative work.

Frankly, I haven't seen any case where a GPL copyright owner has risked a
lawsuit to force the disclosure of a derivative work either, but that one
I'd be willing to take to court, perhaps even on contingency. Unlike some
out there, I believe the GPL is enforceable (either as a license *or* a
contract!), just not as broadly as FSF/SFLC dreams possible.

/Larry

> -----Original Message-----
> From: Walter van Holst [mailto:w.van.holst@...]
> Sent: Thursday, August 02, 2007 10:33 AM
> To: 'Alexander Terekhov'
> Cc: License Discuss
> Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review
>
>
> > -----Oorspronkelijk bericht-----
> > Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> > Verzonden: donderdag 2 augustus 2007 19:08
> > Aan: Walter van Holst
> > CC: Arnoud Engelfriet; Lawrence Rosen; License Discuss
> > Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> > > It has been enforced twice now in German courts.
> >
> > Here's a feedback from one German appellate judge regarding the
> > (first) case in Munich:
> >
> > http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
> > (The first-ever ruling on the legal validity of the GPL - A
> > Critique of the Case)
> >
> > Pay special attention to g).
>
> Bear in mind that Hören under g) criticizes the court for judging the
> question of the validity of the GPL irrelevant. It nowhere says in his
> critique that the GPL would be invalid. In his opinion the question of the
> validity of the GPL is not one that is irrelevant a priori. Which is a
> valid point, IMAO. BTW, I find it somewhat misleading that you call Hören
> an appelate judge (which he is), the article clearly states that it is
> written in his role as visiting professor. It is exceedingly bad form for
> judges to criticize other judge's decision, unless asked to do so in a
> higher court.
>
> > > > 3) Perhaps the "pure" GPL is a misuse of copyright.
> > >
> > > Hardly likely. Abuse of copyright is possible in cases it
> > affects free
> > > speech or
> >
> > Quoting from "Open Source Licensing: Virus or Virtue?"
> > (Abstract is available at
> > http://www.utexas.edu/law/journals/tiplj/volumes/archives/vol1
> > 0/vol10n3/nadana.html)
>
> - snip -
>
> Interesting and possibly flawed analysis, but that is not the point here.
> First of all I have to apologize for construing an apaprant American
> concept under Dutch law without hesitating to think about what you might
> have meant. The doctrine of misuse as you know it is not a doctrine I am
> familiar with under Dutch law or any other continental European law system
> I know of. We do have a generic 'misuse of right' doctrine, the GPL would
> clearly fall outside its scope. You may have or not have a point here
> about misues under American copyright law (I'd be delighted to hear
> Lawrence's opinion on this).
>
> Regards,
>
>  Walter

[Rick Moen]

Quoting Lawrence Rosen (lrosen@...):

> Frankly, I haven't seen any case where a GPL copyright owner has risked a
> lawsuit to force the disclosure of a derivative work either, but that one
> I'd be willing to take to court, perhaps even on contingency.

Do you really think you'd find any judge willing to order that sort of
specific performance as a equitable remedy, when lesser remedies
involving injunctive relief and (if applicable) damages would more than
suffice and are prescribed by statute?  You're the lawyer, my good sir,
but I have my doubts.

Real-world examples, with only some specific corporate names omitted:
http://linuxmafia.com/faq/Licensing_and_Law/copyright-infringement.html

[Lawrence Rosen]

Rick Moen wrote:
> Do you really think you'd find any judge willing to order that sort of
> specific performance as a equitable remedy, when lesser remedies
> involving injunctive relief and (if applicable) damages would more than
> suffice and are prescribed by statute?  You're the lawyer, my good sir,
> but I have my doubts.

If the GPL is enforced on contract grounds, I'd seek specific performance,
which is a contract remedy. If enforced as a bare license under copyright
law, I don't believe specific performance is an allowed remedy.

I'd argue both contract and license, even though the FSF/SFLC pretends the
GPL can't be a contract.

/Larry

> -----Original Message-----
> From: Rick Moen [mailto:rick@...]
> Sent: Thursday, August 02, 2007 12:02 PM
> To: license-discuss@...
> Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> Quoting Lawrence Rosen (lrosen@...):
>
> > Frankly, I haven't seen any case where a GPL copyright owner has risked
> a
> > lawsuit to force the disclosure of a derivative work either, but that
> one
> > I'd be willing to take to court, perhaps even on contingency.
>
> Do you really think you'd find any judge willing to order that sort of
> specific performance as a equitable remedy, when lesser remedies
> involving injunctive relief and (if applicable) damages would more than
> suffice and are prescribed by statute?  You're the lawyer, my good sir,
> but I have my doubts.
>
> Real-world examples, with only some specific corporate names omitted:
> http://linuxmafia.com/faq/Licensing_and_Law/copyright-infringement.html

[David Woolley (E.L)]

Alexander Terekhov wrote:
> Could it be possible that FSF does *not* wish court scrutiny of the
> "pure"*** GPL under copyright and contract law?

Which forms of licence that meet the OSD do you consider to be legally
valid?

If there are any, is there any remaining scope for new licences in those
classes?

If the answer to either the first or second question is "none", why are
you on a list that is specifically there for the purpose of accrediting
new licences as complying with the OSD?

--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[David Woolley (E.L)]

Arnoud Engelfriet wrote:

> This presumes that the clause is severable and not so central
> to the whole GPL that the judge will hold the rest up, but
> that's the theory.

Isn't the purpose of the preamble to make it very clear that this is the
essence of the licence?
--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[Rick Moen]

Quoting Lawrence Rosen (lrosen@...):
> Rick Moen wrote:
> > Do you really think you'd find any judge willing to order that sort of
> > specific performance as a equitable remedy, when lesser remedies
> > involving injunctive relief and (if applicable) damages would more than
> > suffice and are prescribed by statute?  You're the lawyer, my good sir,
> > but I have my doubts.
>
> If the GPL is enforced on contract grounds, I'd seek specific performance,
> which is a contract remedy.

Makes sense -- but, depending of course on the facts of the case, I
would think most defendants would assert mistake and resulting lack of
offer/acceptance, which defence if credible would reduce the case to one
of simple copyright infringement again.  Also, my dusty old notes on
contract law say that specific performance is available as a remedy for
breach of contract _only_ if the usual remedy in law (i.e., damages) is
"inadequate", e.g., where it involves unique real estate properties.
In software cases, remedies in law strike me as generally perfectly
adequate in the legal sense of that term -- and customary.

Also, my notes say specific performance is available only if the
contract provision to be enforced against the tort-feasing party
is "just and reasonable".  E.g., requiring Oracle Corporation to
re-release Oracle RDBMS under GPLv2 just because the company included a
third-party GPL library wouldn't fly, on those grounds, especially when
(again) damages are an alternative and traditional remedy.

Also per my notes, courts grant specific performance decrees in
contract cases only if the contract is "sufficiently certain to make the
precise act which is to be done clearly ascertainable".  My own estimate
is that GPLv[23] wouldn't qualify unless amended to say "You agree that
you will issue any derivatives of the covered work under the same terms
as the covered work itself, even if it's a prorpietary codebase for
which you charge ghastly amounts of money, and yes we do mean you, Mr.
Ellison."

> I'd argue both contract and license, even though the FSF/SFLC pretends the
> GPL can't be a contract.

Quibble:  I may be misremembering, but my recolleciton is that Moglen et
alii basically say it _needn't_ be read as a contract.

--
Cheers,                    English is essentially Anglo-Saxon with
Rick Moen                  all the cool bits taken out.
rick@...        --Thomas Leigh, http://ccil.org/~cowan/essential.html

[Walter van Holst-2]

>> Frankly, I haven't seen any case where a GPL copyright owner has risked a
>> lawsuit to force the disclosure of a derivative work either, but that one
>> I'd be willing to take to court, perhaps even on contingency.

>Do you really think you'd find any judge willing to order that sort of
>specific performance as a equitable remedy, when lesser remedies
>involving injunctive relief and (if applicable) damages would more than
>suffice and are prescribed by statute?  You're the lawyer, my good sir,
>but I have my doubts.

Actually, the disclosure of derivative works is a performance required by the GPL for those that distribute derivative works and therefore ordering such a disclosure would strictly speaking be a lesser remedy than any injunctive relief or payment of damages. The defendant in such a case already agreed to disclosure of derivative works by distributing them and therefore it would not be disproportionate from a legal viewpoint to ask a judge to order him or her to do so.

And now I'll try to say that again with a straight face :-)

Regards,

 Walter

[Arnoud Engelfriet-2]

David Woolley wrote:
> Arnoud Engelfriet wrote:
> >This presumes that the clause is severable and not so central
> >to the whole GPL that the judge will hold the rest up, but
> >that's the theory.
>
> Isn't the purpose of the preamble to make it very clear that this is the
> essence of the licence?

That's why I think the theory is unlikely to succeed. Nevertheless,
for people that disregard preambles as "just a bunch of whereasses"
the argument seems plausible as first glance.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Walter van Holst-2]

________________________________________
Van: Arnoud Engelfriet [arnoud@...]

> Arnoud Engelfriet wrote:
> >This presumes that the clause is severable and not so central
> >to the whole GPL that the judge will hold the rest up, but
> >that's the theory.
>
>> Isn't the purpose of the preamble to make it very clear that this is the
>> essence of the licence?

>That's why I think the theory is unlikely to succeed. Nevertheless,
>for people that disregard preambles as "just a bunch of whereasses"
>the argument seems plausible as first glance.

When writing contracts I sometimes spend more time on the subtleties of the preamble than on the description of the prestations precisely for the reason that the context of the contract can be as important as the contract itself. I tend to agree with you that this clause is so central to the GPL that it is not severable.

Regards,

 Walter

[Alexander Terekhov-3]

On 8/2/07, Walter van Holst <w.van.holst@...> wrote:

>
>
> > -----Oorspronkelijk bericht-----
> > Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> > Verzonden: woensdag 1 augustus 2007 19:44
> > Aan: John Cowan
> > CC: Lawrence Rosen; License Discuss
> > Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> > Do you really think that most other people here are not kind
> > of puzzled by the following piece of GNU "denationalization" wisdom?
> >
> > http://gplv3.fsf.org/denationalization-dd2.html
>
> What is so puzzling about it?

http://weblog.ipcentral.info/archives/2007/03/delusions_of_gr.html
(Delusions of Grandeur: GPLv3 Is A License That Thinks It's a Regulation)

regards,
alexander.

[Alexander Terekhov-3]

On 8/2/07, Walter van Holst <w.van.holst@...> wrote:

> > -----Oorspronkelijk bericht-----
> > Van: Alexander Terekhov [mailto:alexander.terekhov@...]
> > Verzonden: donderdag 2 augustus 2007 19:40
> > Onderwerp: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
>
> > (consider that over time, under "bazaar model" with long
> > chain of derivation in derivative works and additions to
> > collective works by different authors, GPL'd IP becomes
> > practically locked within the GPL pool with no practical way
> > to obtain rights to it under terms other than the GPL)
>
> And what would the _legal_ problem be with that?

The term binding all third parties in future works (in particular GPL
"no charge" restriction) creates a "right against the world" which
subjects it to preemption. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447,
1454 (7th Cir. 1996).

Consider also:

http://www.aals.org/2005midyear/contracts/RadinMaterials.pdf

------
In addition to statutory preemption, preemption under the Supremacy
Clause of the Constitution must be examined. Even if a particular cause
of action survives a 301 preemption analysis...it still may be preempted
if it "stands as an obstacle to the accomplishment of the full purposes
and objectives of Congress." O'Rourke, supra note 62, at 534; see also
Maureen A. O'Rourke, Fencing Cyberspace: Drawing Borders in a Virtual
World, 82 Minn. L. Rev. 609, 694 (1998) [hereinafter O'Rourke, Fencing
Cyberspace]; Cohen, supra note 11, at 23. For the fundamental statement
of Supremacy Clause copyright preemption, see Goldstein v. California,
412 U.S. 546, 559 (1973). In Goldstein, the Court distinguished three
types of situations: (1) areas in which federal law mandated protection;
(2) areas in which federal law mandated no protection; and (3) areas in
which federal law was silent. See id. Only in the last category of cases
was state law free to operate: "Where the need for free and unrestricted
distribution of a writing is thought to be required by the national
interest, the Copyright Clause and the Commerce Clause would allow
Congress to eschew all protection. In such cases, a conflict would
develop if a State attempted to protect that which Congress intended to
be free from restraint or to free that which Congress had protected." Id.
------

"to free that which Congress had protected" develops a conflict, Supremes said.

Now,

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=06-2454_008.pdf

"Copyright and patent laws give authors a *right* to charge more [than
zero], so that they can recover their fixed costs [and thus promote
innovation]" observed prolific and learned Chief Judge Frank
Easterbrook.

Got it now?

regards,
alexander.

[John Cowan]

Alexander Terekhov scripsit:

> Got it now?

Yes, I do.  I leave you to the tender mercies of Rick Moen.

*plonk*

--
As we all know, civil libertarians are not      John Cowan
the friskiest group around -- comes from        cowan@...
forever being on the qui vive for the sound     http://www.ccil.org/~cowan
of jack-booted fascism coming down the pike.           --Molly Ivins

[Alexander Terekhov-3]

On 8/2/07, Ben Tilly <btilly@...> wrote:

> On 8/2/07, Alexander Terekhov <alexander.terekhov@...> wrote:
> > On 8/2/07, Zak Greant <zak@...> wrote:
> [...]
> > Hey Zak, are you still at MySQL?
> >
> > I'm asking because MySQL must be truly excited regarding Seventh
> > Circuit's interpretation of the GPL...
> >
> > ------
> > Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
> >
> > EASTERBROOK, Circuit Judge. Does the provision of copyrighted software
> > under the GNU General Public License ("GPL") violate the federal
> > antitrust laws? Authors who distribute their works under this license,
> > devised by the Free Software Foundation, Inc., authorize not only
> > copying but also the creation of derivative works—and the license
> > prohibits charging for the derivative work. People may make and
>
> Easterbrook is wrong on a basic point of fact.  The license does not
> prohibit charging for the derivative work, and many people have
> charged for such derivative works.  Not the least of these being the
> Free Software Foundation itself.

You misunderstand.

"The GPL covers only the software; people are free to charge for the
physical media on
which it comes and for assistance in making it work. Paper manuals,
and the time of knowledgeable people who service and support an
installation, thus are the most expensive part of using Linux."

Got it now?

But this part

"Thus the GPL propagates from user to user and revision to revision:
neither the original author, nor any creator of a revised or improved
version, may charge for the software or allow any successor to
charge."

is not quite correct. Just ask MySQL or SUN. :-)

[...]
> > (It was real fun to watch groklaw crowd loudly complaining about
> > "Horrible interpretation of the GPL" by EASTERBROOK.)
>
> Well of course they would complain about him having such a common
> misunderstanding of what the GPL says.  It is an elementary mistake
> that many make, and I blame the lawyers for not having done a better
> job in bringing the true facts to bear.

I think Wallace did pretty good job regarding "true facts":

http://www.terekhov.de/Wallace-case.htm

See also

http://www.terekhov.de/Wallace-case2.htm

regards,
alexander.

[Alexander Terekhov-3]

On 8/3/07, Walter van Holst <w.van.holst@...> wrote:

> ________________________________________
> Van: Arnoud Engelfriet [arnoud@...]
>
> > Arnoud Engelfriet wrote:
> > >This presumes that the clause is severable and not so central
> > >to the whole GPL that the judge will hold the rest up, but
> > >that's the theory.
> >
> >> Isn't the purpose of the preamble to make it very clear that this is the
> >> essence of the licence?
>
> >That's why I think the theory is unlikely to succeed. Nevertheless,
> >for people that disregard preambles as "just a bunch of whereasses"
> >the argument seems plausible as first glance.
>
> When writing contracts I sometimes spend more time on the subtleties of the
> preamble than on the description of the prestations precisely for the reason that the
> context of the contract can be as important as the contract itself. I tend to agree with
> you that this clause is so central to the GPL that it is not severable.

Two district courts in Germany applied that logic in Welte's GPL
cases. Here is Frankfurt judgement in English:

http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf

("the possibly invalid part [of the GPL] (Sec. 2 of the GPL) is
inseparably connected to the primary obligation, i.e. the grant of the
license ... incorporated into the contract by virtue of the preamble
of the GPL")

To me, it sounds really funny.

Dear Plaintiff, you're not barred from claiming invalidity of the
entire contract (due to antitrust or whatever violations in this or
that clause)...  thank you for inducing others to break the law
(antitrust or whatever) and please don't forget to sue all other
parties to your entirely invalid contract and collect damages on the
grounds of copyright infringement from them as well.

("Defendant argues, the provisions of the GPL violate Article 81 EC
and Section 1 of the German Antitrust Act (GWB), in particular the
prohibition against price fixing and of
predetermining the conditions of secondary contracts in the first
contract. This would, according to Section 139 of the German Civil
Code (BGB), result in the invalidity of the entire license agreement
with the consequence that Defendant would not have a right of use in
the software at all, so that Plaintiff could file a copyright
infringement claim for that reason ... be entitled to plead invalidity
of the entire contract and therefore allege that Defendant is lacking
any license [to the three programs] whatsoever. ")

regards,
alexander.

[Matthew Flaschen]

Alexander Terekhov wrote:

> 3) Pigs will fly before the Free Software Foundation ever files to
> enforce the mighty "pure" GPL in court.

You are certainly right that the FSF is reluctant to enforce the GPL in
court; that's because lawsuits are very costly for both parties.  But in
using the Linux kernel as an example, you've made a big mistake.  The
FSF is not a copyright holder for any part of the kernel; this means
they can't enforce the GPL on that work.  However, they have
successfully enforced the GPL out of court for every work they hold
copyright on.  I don't think you could name an ongoing infringement for
an FSF work.

Matt Flaschen

[Matthew Flaschen]

Arnoud Engelfriet wrote:

> David Woolley wrote:
>> Arnoud Engelfriet wrote:
>>> This presumes that the clause is severable and not so central
>>> to the whole GPL that the judge will hold the rest up, but
>>> that's the theory.
>> Isn't the purpose of the preamble to make it very clear that this is the
>> essence of the licence?
>
> That's why I think the theory is unlikely to succeed. Nevertheless,
> for people that disregard preambles as "just a bunch of whereasses"
> the argument seems plausible as first glance.

Also, if it is a contract (at least under some legal system), which
means Eben Moglen's interpretation that "Licenses are not contracts: the
work's user is obliged to remain within the bounds of the license not
because she voluntarily promised, but because she doesn't have any right
to act at all except as the license permits."
(http://emoglen.law.columbia.edu/publications/lu-12.html) is incorrect,
wouldn't the contract be invalid if the the licensor wasn't getting
"consideration"?  IANAL, but I think the consideration would probably
have to be the copyleft provision.

Matt Flaschen

[Matthew Flaschen]

Alexander Terekhov wrote:
> It would violate
> equity and good faith if he were allowed to sue others merely on the
> grounds that his license terms were invalid.

I think it would be equally inequitable if the downloader was able to
get all the benefits of the license despite invalidating all the
obligations.

Matt Flaschen

[Matthew Flaschen]

Alexander Terekhov wrote:
> The term binding all third parties in future works (in particular GPL
> "no charge" restriction) creates a "right against the world" which
> subjects it to preemption. See ProCD Inc. v. Zeidenberg, 86 F.3d 1447,
> 1454 (7th Cir. 1996).

Are you trying to imply copyright holders don't have the full right to
license at no charge?

 > In Goldstein, the Court distinguished three
> types of situations: (1) areas in which federal law mandated protection;
> (2) areas in which federal law mandated no protection; and (3) areas in
> which federal law was silent. See id. Only in the last category of cases
> was state law free to operate: "Where the need for free and unrestricted
> distribution of a writing is thought to be required by the national
> interest, the Copyright Clause and the Commerce Clause would allow
> Congress to eschew all protection. In such cases, a conflict would
> develop if a State attempted to protect that which Congress intended to
> be free from restraint or to free that which Congress had protected."

How does the GPL have anything to do with state law or "federal law
mandating no protection"?  I can't see how either apply.

Matt Flaschen