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lawgon
Finaly read the GPL. As i suspected it is one sided in the sense that the person issuing the license makes no promises and gives no undertaking. For example, he does not say it is irrevocable. Since the copyright holder makes no promises and gives no undertaking, the licensee has no rights against the license holder in a court of law. I wonder how many worshippers of the GPL have taken the time to read it?

Just curious, what promise does a book author make that a coder doesn't?


Yet to see a book author giving license to copy/modify/redistribute his book

So if I grant license to copy / modify / redistribute my code, what promises should I make? And why are those promises required only if I grant those rights? Can you explain?

If you buy a license given by a proprietary software and they revoke it without reasonable cause, you can sue them and win. Because they make promises and you pay them. Even if they dont make promises you can still sue them since you have paid. But if you give a foss license for your code, you can revoke the license at any time and they cant sue you since they have not paid, nor have you made any promise not to revoke. GPL allows you to make warranties/promises and to take payment also, but you have to add these conditions yourself. Most people dont. This is a why a lot of developers and endusers are nervous about GPL.

You keep on pointing to some wiki on shanta - can you pass the URL along please ?

dont have it, you can ask Raj Mathur - he doesnt read blogs, so you will have to ask him on IRC

I didn't know you could revoke a license so easily. I thought you released a copy under license A, if you re-consider it, you release another copy under license B. But the earlier copy continues to be licensed under license A.

Anyways, thanks for your explanation. I've had my doubts about the GPL too. Would still like to believe that it works.

You can revoke a GPL license, but you can't recall the code previously handed out. If you gave me your GPLed code and later revoked the license, I'm still entitled to use your code under the terms of the GPL.

Or so I always thought.

it has never been tested in court, but on the face of it, since you have not paid me, i can recall the code and stop you from using it. Remember, copyright holder makes no promises under the GPL.

That sounds like a legal opinion by a non-lawyer who has heard that there is a requirement of "consideration" to form a contract. First of all, the grant of a license is not in itself a contract, anyway. I could grant you a license as a gift; that would not mean that I could revoke it at will anymore than I can require you to give back any other gift I've given you. Second, the requirement of consideration is something that is bound to be misunderstood by someone who has little knowledge of the law.

A person who publishes code (or a book or anything else) under the GPL has no right to revoke it. It becomes in the wild, as they say. This happened, for example, to Borland, which made its Interbase database available under the GPL and then changed its mind. Borland could prevent future versions of Interbase from being open sourced, but the version it made open source was in the wild and became the basis of what is now the Firebird open source database. (See http://www.firebirdsql.org ) (Firebird was not gpl'd, but same thing would have happend under gpl.)

Likewise, MySQL cannot revoke rights of anyone to use any version of MySQL that has been published under the GPL. If MySQL decided not to publish future versions under GPL license, anyone else would be free to form a project to continue open source development of a gpl'd version. This new project would not have same rights as MySQL, which is original creator of MySQL and has right to license under any license it wants. But anyone can fork MySQL and grant gpl licenses to others.

I am a former lawyer now in software business. It really bums me out to read bogus legal opinions on the internet. Especially when it is effectively FUD about GPL.


Re: No.

(Anonymous)

2006-09-11 12:53 am (UTC)

"This happened, for example, to Borland, which made its Interbase database available under the GPL . . . "

Sorry, that was mistake. Borland did not publish Interbase under gpl, but as I said correctly later in paragraph, effect was same with regard of giving others unlimited right to continue their own open source development regardless of whether Borland changed its mind and decided not to issue later versions as open source.

and it really burns me out to read comments by guys who havent the guts to mention their names

Re: No.

(Anonymous)

2006-11-23 03:54 pm (UTC)

And it really burns anonymous guys out to read FUD about the GPL where the principal source of legal "expertise" is only revealed through some guy on IRC. Talk about having guts!

i could reply to this - but i dont like replying to people who dont have the guts to put their names up front. Who are you scared of? but where did you learn that Borland licensed anything under GPL? 'In the wild' ?? were you a lawyer or a poet?

I was anonymous because I had no livejournal account. I just created a logon, so you have my contact info if you want.

Like I said, I mistakenly said that Borland (then named 'Inprise') published Interbase under the GPL. Instead, the truth is that Borland/Inprise published a version of Interbase under a variant of the Mozilla Public License, and later decided to retract its decision to open source Interbase. The version that was mpl'd was unaffected by Borland's decision to bring Interbase back into the fold as solely commercial software, and the mpl'd version was adopted by the Firebird project that has grown into one of the big three open source databases today.

It's not even a controversial subject that once a version of software is gpl'd, the person who originally granted the gpl loses control over that version and can't revoke the license from its users, who may continue development and/or fork the code, regardless of whether original grantor decides to refrain from open sourcing future versions.

If you want to read up on the GPL and other open source license issues a good resource is Lawrence Rosen's book:
http://www.rosenlaw.com/oslbook.htm

I would add the warning that non-lawyers should be careful when drawing conclusions even from a book like Rosen's. Like I said regarding the requirement of "consideration" for valid contracts, there are way too many subtleties in legal issues for someone who doesn't have the whole picture to confidently make legal pronouncements.

I also usually give the additional warning that you should always take legal opinions that you read on the internet with a grain of salt. That goes for my own advice as well. You have no idea whether I'm telling the truth when I say I am a former laywer. Even if you believe that, you have no way of knowing whether I'm an idiot or whether I have any particular knowledge regarding software law.

If nothing else, though, I hope my post makes some people rethink things. IF you have an _important_ real-world issue concerning software IP issues, you should consult a lawyer. Don't rely on anything you've read on the internet. And if you're not a lawyer, please don't rely on your own understanding if the issue is an important one for you or your business, however confident in it you may be. It's far too easy for non-laywers to misunderstand the law in a way that seems to them to make perfect sense.

-- Herbert Sitz

Thanks for giving your name - btw, even in an anonymous post, you can always give your name in the body of the post. And also, btw, I *am* a lawyer (or at least I passed the law exam and have 25 years of trial experience). In this context, it may be relevant to quote some sections of the Indian Contract Act:

10. What agreements are contracts

All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.



25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law -

An agreement made without consideration is void, unless -

(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless.

(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless.

(3) it is a promise, made in writing and signed by the person to be charged therewith or by his agent generally or specially authorised in that behalf, to pay wholly or in part debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract.

Explanation 1 : Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made.

Explanation 2 : An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.

Okay.

First, I never disputed that consideration is a requirement of a valid contract. Everyone learns that in the first semester of law school. The more difficult thing is understanding exactly what that means.

What I said in my earlier posts was that the GPL is a license _only_, not a contract. Licenses are typically granted as performance of one party's promise in an agreement, that's true. You usually have "license agreements", e.g., EULAs. But there is nothing that prevents a license from being granted as a gift, or -- in the case of the GPL -- as a conditional gift.

If I give you a house, I cannot then the next day claim that the contract between us had no consideration and demand my house back. The fact is that there was no contract and I deeded the house to you as a gift. Once given, there is no legal recourse to recover a gift from the giftee. I could make a conditional gift by creating a reversionary interest in my gift of a house to you, "I gift you my house for so long as you live in it, but the moment you cease living in it title reverts to me." Once again, that is not a contract but the giftee holds title to the house only so long as giftee lives there.

The GPL is a similar type of conditonal gift, with conditions specified under copyright law rather than as reversionary real property interests. You can read chapter 7 of Rosen's book to get a better idea of the basis for the reciprocal duties in the gpl.

Notice that Rosen says, "The GPL relies on an entirely different set of legal principles,based on copyright law rather than contract law, to
ensure that the license terms are accepted."

I would add that Rosen also discusses non-GPL FOSS licenses which place fewer restrictions on licensees than the GPL does, and claims that they are valid as "unilateral contracts", which involve a unilateral promise by one side (issuer of software under open source license) that is accepted by performance of the licensee, which qualifies as "consideration" (by using the software in accordance with restrictions in the license).

Regardless, of what the analysis is, there is virtually zero chance of the grant of a gpl license being voided as part of a contract without consideration. At the very least, the hugely important issue of the licensee's reliance on the licensor's promise would give rise to promissory estoppel.

On a more common sense analysis: Do you really think that virtually all of the Fortune 500 companies would base important parts of their IT (i.e., Linux, associated GNU tools, etc.) on a license that could be voided at the whim of the gpl licensor by claiming there was a contract without consideration?

There are issues that prevent gpl from being adopted by large companies (viz. its viral nature, uncertainty of what constitutes a "derivative work" under copyright law), but I assure you that the issue of gpl licenses being granted as part of a void contract is not one of them.

-- Herb

compare the revocation clause in creative commons with GPL:

Creative Commons:

7. Termination

1. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.
2. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.


GPL:

4. You may not copy, modify, sublicense, or distribute the Program
except as expressly provided under this License. Any attempt
otherwise to copy, modify, sublicense or distribute the Program is
void, and will automatically terminate your rights under this License.
However, parties who have received copies, or rights, from you under
this License will not have their licenses terminated so long as such
parties remain in full compliance.

Re: No.

(Anonymous)

2008-05-08 08:11 pm (UTC)

http://www.fsf.org/licensing/licenses/gpl-faq.html#CanDeveloperThirdParty

........

(Anonymous)

2008-08-17 04:44 am (UTC)

Your blog is interesting!

Keep up the good work!

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