Thanks Daniel M. O'Mara! You have formulated the point that I was trying to make (rather clumsily) in very, shall we say, "self-sufficient" way. Therefore, I'll repeat it again:

-------------------------------------------------
Copyright law is not as much "self preempting" as it is "self sufficient" to allow the author of an original body of work to allow its modification and extension while protecting the underlying property.
-------------------------------------------------

BSDProtector has stated:

" Also, the other concusion is that "multiple independent permissions of copyright holders" are sufficient to get authorization (i.e. license) to do something with the copyrighted work which would otherwise be prohibited by the Act. No contract between owners of copyright is required to do so."

With which I agree entirely in the case of the GPL which in itself is a "pure permission" with respect to a body of copyright (in the cases in which it is generally applied bodies of source code which constitute "computer programs"). Since the preexisting work upon which derivatives are allowed to be created by the license are simply sufficient to be subject of copyright, the derivatives created by ammendment or extension under the license fall under the original license if distributed in that they incorporate in the large the original body of work. Copyright law is not ao much "self preempting" as it is "self sufficient" to allow the author of an original body of work to allow its modification and extension while protecting the underlying property.

Simply put, theft of intellectual property is not allowed by the creator of some derivative by that allowed act of derivation and conversely theft of the intellectual property of the creator of the derivative is not permitted to the original author. Both must simply agree to the terms of the license under the derivative was authorized and the original body of work was distributed for further distribution to be legal. Copyright is simply a grant of monopoly rights to the author of an original "work of art".

Does Copyright Act preempt itself?

I was reading the Copyright Act again and found this in section 106:

-----------------------------------------
Subject to sections 107 through 122, the owner of
copyright under this title has the exclusive rights to
do and to *authorize* any of the following:
-----------------------------------------

Emphasis is mine, of course.

Now, to authorize, what exactly does that mean (http://dictionary.reference.com/search?q=authorize):

-----------------------------------------
Synonyms: authorize, accredit, commission, empower,
license

These verbs mean to give someone the authority to
act: authorized her partner to negotiate on her
behalf; a representative who was accredited by his
government; commissioned the real-estate agent to
purchase the house; was empowered to make decisions
during the president's absence; a pharmacist licensed
to practice in two states.
-----------------------------------------

So, I take this to mean that "authorize" means "license". So, now we know that the owner of copyright has the explicit authority to license, as given by the Act.

The next important questions are:

1. Can an owner of copyright impose any conditions to this authorization or licensing?

2. Can two owners of copyright give permission independently or do they have to create a contract in order to do so?

Section 114, which relates to "Scope of exclusive rights in sound recordings", contains this text:

-----------------------------------------
(2) For licenses granted under section 106(6), other
than statutory licenses, such as for performances by
interactive services or performances that exceed the
sound recording performance complement —

(A) copyright owners of sound recordings affected by
this section may designate common agents to act on
their behalf to grant licenses and receive and remit
royalty payments: Provided, That each copyright owner
shall establish the royalty rates and material license
terms and conditions unilaterally, that is, not in
agreement, combination, or concert with other
copyright owners of sound recordings; and
-----------------------------------------

First, the obvious thing here is that this Act explicity recognises the concept of "licenses granted under section 106(6)". I don't think that if licensing applies to 106(6) it wouldn't apply to the whole of 106. So, it is pretty safe to assume that a concept of licensing is something that does in fact apply here. Actually, it is explicity stated at the beginning of section 106. After all, "auhtorize" == "license".

Second, note the wording of establishing conditions unilaterally and not in agreement with other copyright owners. Similar situation exists when it comes to derivative works - there are multiple owners. One would tend to conclude here that this Act in fact recogizes a possiblity of multiple unilateral "licenses" or "authorizations" without an agreement between those involved (i.e. without a binding legal form, contract).

Third, note the wording of "conditions". This is absolutely recognised by this Act. It is also used in combination with "unilaterally" quite explicitly.

What can we then conclude out of all this on the topic of "Copyright Act preempts itself"?

First, "copyright license" is an "authorization" as specified by this Act and not a contract of any kind. This Act does not require any other laws for this authorization or licensing to be enforced.

Second, because if the above "conditional licensing" recongition weren't the case, one would absolutely require a contract to enforce anything that has "conditions". Conditions would assume some sort of a promise, so this would then fall under the contracts law. This would then mean that in order to "authorize with conditions", as explicitly recognised here in the Act, one would need to employ a contract and therefore fall afoul of section 301 which deals with preemption when it comes to exclusive rights as set forward in section 106.

Third, it would seem clear that it is explicitly allowed by the Act that multiple permissions of the owners of copyright be employed together and without an agreement between them, in order to achieve a complete permission to do something with the work.

So, the logical conclusion would be that Copyright Act preempts itself if it requires some other state law in order for the exclusive rights, it (Copyright Act) exclusively governs, to be enforced. This is of course not possible, so the only interpretation available is that "authorization with conditions" or "licensing under conditions" is explicitly allowed by the Act.

Also, the other concusion is that "multiple independent permissions of copyright holders" are sufficient to get authorization (i.e. license) to do something with the copyrighted work which would otherwise be prohibited by the Act. No contract between owners of copyright is required to do so.

Mr. Wallace has stated:

"Cite specific case, statute or other well settled legal
authority and combine it with coherent, cogent logic.
I shall be happy to retract at that time."

Congress replied prior to his statement in US Code, Title 17, Paragraph 103:

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

Congress was more than prompt in their response Mr. Wallace, where is yours?

"I am prepared to wait until Hell freezes over for your answer."

D. O'Mara

I could be wrong too. It's just that the disclaimer at the beginning, the theme, the style of writing, the substance of the argument etc. all match.

So, I'll reserve my right to retract, if you don't mind ;-)

Well, that does seem a lot like him. I'm "happy to retract" my previous statement. It appears I may have been in error.

DaveF, try this one:

http://linuxtoday.com/news_story.php3?ltsn=2003-08-15-025-26-OP-CY-0004

It must be another retired physicist then...

I cannot guarantee it, but the whole thing looks like Mr Wallace at his best :-)

Well, there's no doubt whatsoever that danw6144 is Daniel Wallace. In one of his posts over there, he quotes his FSF associate member number as 1550, same as here.

I'm not sure about gumout, though. There are similarities there, yes, but my gut tells me no. But, hey, I've been known to be wrong about such things before! :-)

Interesting explanation. I wonder if Mr Wallace ever took time to read it:

http://developerslab.org/print.php?sid=328

Hi Daniel M. O'Mara,

I have to disagree with you here. I think we'll hear plenty more from Mr Wallace.

Actually, I think he's been posting similar arguments on Linux Today (as gumout) and on LWN (as danw6144 - probably his birthday). I have no proof of that, but the content of the posts is strikingly similar... It would be nice to have some confirmation from Mr Wallace.

One of the better (read: more funny) theories of "gumout" is that Linux is a joint work. As such, all authors have equal copyritght in it. Therefore, SCO can publish it under a proprietary license, but it cannot stop other copyright holders from doing it under any other license.

A funny side effect of that would be this. I contribute a file to Linux. Therefore, I gain full copyright to it. Then I take JFS, for instance, and publish it under some proprietary license.

Does anyone in their right mind believe IBM wouldn't be all over me?

Hi BSDProtector,

I'm assuming that he's dead. Perhaps we needn't bother waiting for a response.

I'm also cerrtain that his lack of problems with the BSD license are the same as MuckroSoft's

Dan O'Mara

(Still waiting...)

Mr Wallace commented:

"Until that event occurs, I stand by my legal citations
and the logic used to reach my lay conclusions:

1) The GPL is unequivocally a contract.
2) It's preempted by copyright law."

Now, I've been pounding this for a while and I know I'm getting boring to some people (sorry). Nevertheless, following your logic, one may claim this:

1) The BSD license is unequivocally a contract.
2) It's preempted by copyright law.

Point 1 you have already conceded in one of your previous posts that it is the case:

"An original author can ask to place restrictions on
another's exclusive rights if he agrees (has privity).
This conditions distribution of derivative works with
authors in "privity"."

You've also said that every license is a contract, so we can safely say here that BSD license is a contract for sure. So far, so good. BSD license is definitely a contract. The conditions established in that privity are binding to all recipients of this work, forever. The "universal privity" is the term you used for that. I urge you to read the text of the BSD license again - the terms are self-perpetuating, or as you'd like to put it, the conditions are demanded "ad infinitum". It is not important that those recipients can use another license (i.e. add more conditions if they so wish) - what is important is that they are bound by those same terms.

Out of all this, you conclude that BSD license then must be OK. How and why is that?

Also note here that almost every license works this way. The purpose of the "ad infinitum" thing is the protection of the "original work" inside those derivatives, to which original author has, without any doubt, exclusive rights. Actually, without such self-perpetuating clauses, most licenses are completely worthless.

I'm willing to agree with you that every license is a contract (although I don't believe this to be true) for the purposes of this discussion. Would you care to explain one last time, why is it that when BSD license tries to establish "universal privity" that is OK, and when GPL attempts the same thing, it is not?

Mr. Wallace

Your statement was: "happy to retract".

I am waiting.

Once again, Mr. Wallace since I tire of you:

Title 17 paragraph 103 states:

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

What other well settled legal authority than the people of the United States in Congress asseembled do you require to make clear to you your misunderstandings? Your happiness to retract nonsense is highly suspect. Do you misunderstand "does not affect" or are you willfully obstreperous in your ignorance of the law?

"3. (More than) one attorney says you're wrong...
'Now, I'm not certain of what path physicists typically
follow when trying to argue their claims but, as a
scientist in another discipline, I'm pretty sure that
this is not it.'"

Physicists rely on the scientific method. They
use demonstrable facts and reliance upon principles of
inductive and deductive logic.

Apparently one attorney, whose path I suspect crosses
another blog weighing in on this controversy, has
endeavored, without cite to specific case, statute or
other well settled legal authority attempted to
rhetoricaly contravene my arguments.

I have observed that about half of all attorneys who
represent parties in a lawsuit, will end up representing
the losing side.

If SCO's attorneys are given your presumption that
all their representations are infallible, then IBM and
Linux are in big trouble.

Cite specific case, statute or other well settled legal
authority and combine it with coherent, cogent logic.
I shall be happy to retract at that time.

Until that event occurs, I stand by my legal citations
and the logic used to reach my lay conclusions:

1) The GPL is unequivocally a contract.
2) It's preempted by copyright law.

Mr Wallace said: "The disclaimer says don't rely on my conclusions for legal advice... go check with a competent attorney."

Well, that's been done and it turns out you were wrong. Would you like to address that point?

Mr Wallace said: "This is only fair to the editors of LinixWorld and its readers. It also clarifies that I purport to represent only myself and no other party. To purport to legal advocacy on behalf another party is the unauthorized practice of law. There I shall not venture."

No, it simply can not be that you were motivated by magnanimity to LinuxWorld and to its readers when you wrote that. Had that been the case, you would have said something more akin to "Of course, since I am not a lawyer, I could be wrong about this." No, the words you chose were clearly designed to lend an air of credibility to what you wrote. You said "a quick check" thereby suggesting that it was simple to validate your claims. You said "a competent attorney... will [verify] these conclusions" suggesting that you were inarguably right in what you wrote. You did not say that an attorney "might" verify your claims, nor did you say that your claims are speculative and should not be believed unless verified. Now that you've been demonstrated to have been wrong, you refuse to admit that fact and you contiunue to post the same things over and over again.

Mr Wallace said: "On seeing this disclaimer, it is at once apparent that I am not an attorney and that reliance my [sic] e-mailed Letter to the Editor should be checked with competent counsel."

And now that that's been done and more than one attorney has been shown to say that you are wrong, what do you have to say? You steadfastly refuse to say anything even remotely like "Oops, apparently I was wrong." All the while, you repost the same points ad nauseam, suggesting that you cannot be considered credible in anything else you post. In summary, this is the character of your debate thus far:

1. Make some claims.
2. Say, "But you don't have to believe me. Simply go check with someone who knows this stuff [an attorney]"
3. (More than) one attorney says you're wrong.
4. Fail to acknowledge that.
5. Loop to step 1.

Now, I'm not certain of what path physicists typically follow when trying to argue their claims but, as a scientist in another discipline, I'm pretty sure that this is not it.

Dan O'Mara, Mr Wallace's arguments are similar to that of an illegal search.

You go into someone's house without any legal authority and find something incriminating. Then you use that in court to prove something, which is of course not allowed, because you had no legal ground to do the search in the first place. You cannot put the cart in front of the horse.

The same analogy can be applied here. The contributing author *gains* some rights through original authors *permission* by accepting his conditions (it is irrelevant here if Mr Wallace wants to call this a contract or not). But then the contributing author says: "Hey, these rights are exclusive, you cannot impose conditions on them." He conveniently forgets the fact that without the initial permission he's got no rights - ABSOLUTELY NONE.

And that is just one of the completely illogical arguments that Mr Wallace puts in front of us. I just wish he took his arguments to Mr Moglen, given Mr Wallace is an associate FSF member. I'm sure Mr Moglen, being a somewhat competent attorney, would risk a few minutes of his time over this issue for an FSF member...

Mr Wallace states:

"There are two exclusive permissions involved in allowing a
derivative work to be reproduced. The "preexisting" author's
permission and the "modifying" author's permission. Each
must agree to provide the waiver of a legal right. This is
the same thing as saying an agreement of "sufficient
consideration for a promise" from both parties."

which makes no sense. In the production of a derivative work the permission of the author or authors of the underlying body of copyright is the only necessary and sufficient permission. In that the result is a "substantially new work" under copyright law, the permission of all authors of the resultant work is necessary for further distribution or the creation of further compilations or derivatives. The GPL is what provides the legal basis and framework for such work to proceed.

Mr Wallace further states:

"The GPL requires a modifying author to use the same GPL
license to distribute the derivative work. The intended
effect of this imposing the "use the same license"
requirement for *all* future successor authors and not
just the two original contracting parties (authors in
privity)is a "universal privity", where original
contractual terms are binding on all third party strangers
to the original author. Since the GPL's terms are about
copyright matters and enforced under state laws this is
forbidden by Congress in section 301."

which makes no sense again and furthermore misrepresents the requirements of the GPL. "Derivative work" is a term which has meaning exclusively under copyright law, in particular Title 17 paragraph 103 states:

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

In compliance and in harmony with this statement of law the GPL states:

" These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works."

In what fashion is this subject to preemption by copyright law?

The AT&T UNIX System V licenses (contracts governed by the laws of the state of New Jersey) stated, on the other hand:

" 2.01 AT&T grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE'S own internal business purposes and solely on or in conjunction with DESIGNATED CPUs for such SOFTWARE PRODUCT. Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT."

This clause has been repeatedly used by the inheritors of these licenses (though not by AT&T themselves) to provide them with rights "equivalent to ownership" of materials not of their authorship and not assigned to them by the authors. In what way are we to assume, even from your limitedly decipherable arguments that this clause of a state contract could possibly preempt federal copyright law?

The only conclusion that I can draw from your continued misstatements, misapplications and misrepresentations is that your incapable of being rationally talked with and are unshakable in your convictions, however at odds with any fact which can be provided in refutation. I'm therefore not arguing with you, but simply posting relevant information for the information of any who might otherwise be misguided by your statements.

Mr Wallace commented: "The disclaimer says don't rely on my conclusions for legal advice... go check with a competent attorney."

The question I have is this: did you? Did you check with a competent attorney Mr Wallace?

It seems to me that this issue has been addressed by competent attorneys many times (Moglen, Lessig, Rosen, Santander etc.) and they all seem to be saying the same thing - as a copyright license, GPL is absolutely solid. The only lawyer that does have a problem with it is Heise, the one that's representing SCO. Now, I don't know this man, but from what he was saying just recently in front of judge Wells, I'd say he isn't all that competent...

Can you show us an example of a competent lawyer outside the SCO circus that actually believes that GPL is invalid?

And before you answer this, let me remind you that Darl McBride was asked about the GPL at MIT and how is it that they distribute software under it (e.g. Samba, bash, gcc etc.) if it's invalid. He said they had no problem with the GPL any more (so they effectively backed out of that claim when directly asked), only with their supposed IP in Linux being shipped under it.

"Mr Wallace, when you said that "A quick check by a competent attorney... will quickly confirm the accuracy of these conclusions..."

When Mr. Wallace said those words it was for good purpose.
He wanted to inform the editors at LinuxWorld that he was
not a qualified or practicing attorney. The disclaimer says don't rely on my conclusions for legal advice... go check
with a competent attorney. This is only fair to the editors of LinixWorld and its readers. It also clarifies that I purport to represent only myself and no other party. To purport to legal advocacy on behalf another party is the unauthorized practice of law. There I shall not venture.

On seeing this disclaimer, it is at once apparent that I am not an attorney and that reliance my e-mailed Letter to the Editor should be checked with competent counsel.

Mr Wallace commented: "The BSD license does *NOT* require a modifying author to agree to distribute a derivative work under the same BSD license that the modifying author first accepted. This is OK."

What the modifying author is forced to agree to is completely irrelevant. What is relevant is that BSD license requires the modifying author to *agree* to distribute under the *conditions*. In other words, he gains something only and only if he AGREES to those conditions. Just like with the GPL. You have claimed that this in not possible by definition. But, even more fallacy follows...

Mr Wallace commented: "The GPL requires a modifying author to use the same GPL license to distribute the derivative work. The intended effect of this imposing the "use the same license" requirement for *all* future successor authors and not just the two original contracting parties (authors in
privity) is a "universal privity", where original contractual terms are binding on all third party strangers to the original author. Since the GPL's terms are about copyright matters and enforced under state laws this is forbidden by Congress in section 301."

The BSD license does exactly the same thing. It is also about copyright matters (it specifically places restrictions and conditions on the distribution). It is also a "contract" between the two parties to which the third one has no privity. The conditions that the BSD license imposes on the "contractual parties" are intended for all future authors. It is completely the same in it's effects, only the substance of conditions is different.

What you're failing to see is that BSD license is just a viral as the GPL (some others fail to see that too). It is just that the nature of what's supposed to be self perpetuating is different. Just take the advertising clause for instance - all future modifying authors are absolutely required to advertise this: "This product includes software developed by the University of California, Berkeley and its contributors." They are not privy to the original authors "contract" with the modifying author and yet they absolutely must obey this condition. According to you, this would be impossible and yet it is a FACT.

And if you really want to know why is it that the original author can actually do all this, you should read the copyright law again. The original author is the only person with exclusive rights in that work. Therefore, he can condition to anyone, anytime and anywhere under what terms his work is going to be distributed, copied, reproduced etc. This whole thing is *entirely* about the rights given to the copyright holder, not some "new right against the world" as you're trying to describe.

Therefore, Mr Wallace, I assert here again that your arguments are completely bogus.

Since comments are showing up for a change, I'll take the opportunity to ask Mr. Wallace exactly what "new right against the world" it may be that he is claiming the GPL establishes.

In particular the GPL states specifically:

" These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.

In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License."

It's not my intent to belabor the obvious in posting as a quotation the entirety of a clause within the GPL, but it would appear that this exact statemeent is in entire contradiction to the premise that the GPL is attempting to establish "control" over anything but the original work of authorship. This is in direct contradiction to the claims that some "contract" is forced onto the creator of a derivative depriving them of some purported "rights" within the derivative or collective works authorized by the copyright owner. No such deprivation is the result of the use or application of the GPL, directly in opposition to the effect of conferring "control" over the works of others that The SCO Group asserts is within the power of the UNIX System V licenseing agreements, which they argue preempts contrary interpretation of ownership which would result by application of U.S. copyright regulations.

Dan O'Mara

Mr Wallace refuses to acknowledge that legions of attorneys have rebutted his points and that he's just being wilfully abstruse.

Mr Wallace, when you said that "A quick check by a competent attorney... will quickly confirm the accuracy of these conclusions." you were wrong, wrong, wrong, wrong, wrong. It's really that simple. Note that you didn't say "a quick check by all attorneys" nor did you say "a quick check by a Justice of the Supreme Court" nor did you say "A quick check by Daniel Wallace." I'd be more inclined to take your contributions seriously if you could admit that you were wrong when you said that. I know you're probably getting tired of hearing me harp on this but I think it shows a lot about you. You keep posting the same stuff over and over and over again and will not admit the simplest of errors. Why should we continue to believe any of it? Why? Just answer me that...

BTW, I want to thank LinuxWorld for placing a pointer to David Mohring's cogent rebuttal on the front webpage. Despite what I might have said elsewhere, I think this shows LW is trying to be fair. ;-)

"3. The interpretation of "binding legal forms" is left to
state action for enforcement. So this "binding legal form"
is clearly an attempt to create a "new right against the
world" concerning copyrights. How is it a new right? Well,
the original authors are placing conditions on the
distribution of the derivative "ad infinitum" (they
require copyright notices, adverising cluse and promotion
clause to be kept intact)."

The BSD license's original author places some restrictions
on the original author's source code alone.
This is OK.

An original author can ask to place restrictions on
another's exclusive rights if he agrees (has privity).
This conditions distribution of derivative works with
authors in "privity".
This is OK.

The BSD license does *NOT* require a modifying author
to agree to distribute a derivative work under the same
BSD license that the modifying author first accepted.
This is OK.

The GPL requires a modifying author to use the same GPL
license to distribute the derivative work. The intended
effect of this imposing the "use the same license"
requirement for *all* future successor authors and not
just the two original contracting parties (authors in
privity)is a "universal privity", where original
contractual terms are binding on all third party strangers
to the original author. Since the GPL's terms are about
copyright matters and enforced under state laws this is
forbidden by Congress in section 301.

I suspect the reason supporters of the GPL have, over the
years, used all kinds of legal descriptions of the GPL to
avoid calling it a *contract* is preemption problems.
Contracts use state law enforcement.

No matter how you describe the GPL to a judge i.e.
"unilateral permission", "grant of property rights",
"mere license" or "copyleft license" the judge will read
the GPL and see the words "copyright" and "permission". I
count four occurrences of "permission". It is universally
understood (I presume) that a "permission" means the
"waiver of a legal right". The principle of:

"In general a waiver of any legal right at the request of
another party is a sufficient consideration for a
promise." --- Parsons on Contracts, 444.

is well established. Searching { "waiver of any legal
right" contract } returns 43 references with Google.

The judge is of course a highly trained lawyer. He
instantly knows we're talking about "sufficient
consideration for a promise" and "copyrights". No matter
how we described this GPL "thing" to the judge, he is
going to realize we are talking about elements in contract
law. The judge will read:

"5... Therefore, by modifying or distributing the Program
(or any work based on the Program), you indicate your
acceptance of this License to do so, and all its terms and
conditions for copying, distributing or modifying the
Program or works based on it..."

and he will know we are talking about "*accepting*
sufficient consideration for a promise". This defines a
contract regardless of how we chose to describe it to the
court.

If it's merely copying the code without modification then
it's a unilateral contract. If the proffered code is
modified and distributed then it's a bilateral contract.
If a question is raised concerning enforcement (i.e. 'is
it binding?') of some term in the GPL, then it will be
examined first under state contract law.

All copyright license (copyright permissions) are
contracts. If a copyright permission is "a unilateral
grant" then it forms a unilateral contract by definition.
This is a well established principle.

Mr Wallace, if it is indeed correct that:

"In general a waiver of any legal right at the request
of another party is a sufficient consideration for a
promise." --- Parsons on Contracts, 444.

this would make almost any copyright license in fact a contract. All right, you have even claimed that in a few of your posts. Let's then assume that you are correct - every license is in fact a contract because it contains a promise.

Now take this example, again, as I like to show, of software licensed under a BSD license (BSDL):

Software A is licensed to me under BSDL. The authors are explicitly giving me permission to distibute the derivative (read: http://www.freebsd.org/copyright/license.html) - see the wording REDISTRIBUTION [...] WITH MODIFICATION, under certain CONDITIONS. Now, I take that software, create a derivative from it (let's call it B) and release it under the some other license, but because I'm a fool, I decide to give into the demands of the license and I obey them. Now, according to you, there are several problems with this:

1. The original authors are putting conditions on the redistribution of the derivative (including my contributions inside that derivative) which is outside of the the scope of the unilateral permission (see conditions 1 - 4 of the license). That is not possible by definition, as you said in your original letter. (Note here that section 2 of the GPL does not deal with modifications as a separate item, only the ones that are distributed as a "whole", just like BSDL does)

2. To distribute the derivative, me and the original authors must have created a binding contract. Otherwise, one of the permissions would be missing. So, we have formed a binding legal form and binding legal forms do require privity. This would make the third party, the receipient of the work B, have no direct connection with the copyright holder of the work A, or there would be no "privity". This in itself is legally a problem when it comes to contract. But, even if that's somehow put aside there is still:

3. The interpretation of "binding legal forms" is left to state action for enforcement. So this "binding legal form" is clearly an attempt to create a "new right against the world" concerning copyrights. How is it a new right? Well, the original authors are placing conditions on the distribution of the derivative "ad infinitum" (they require copyright notices, adverising cluse and promotion clause to be kept intact).

Now before you strart jumping up in the air and saying but no, but no, just check if any BSD licensed software inside Microsoft Windows (example: FTP client) contain any copyright notice, as CONDITIONED by the original author's notice. Why would Microsoft, a company with $40G in the bank and lawyers that grow on trees, choose to contaminate their own software with copyright notices of software for which the license is completely unenforceable? Why would they choose to obey the demands instead of simply saying: "Ah, this license is crap, they have allowed us to create the derivative, after that they have nothing more to say to us. Promissory estoppal, blah, blah..."

The answer is simple: "Because they absolutely have to, if they want to avoid copyright infringement."

Given all of the above (and similar can be shown for most software licenses that deal with redistribution of derivatives), I assert your arguments are completely bogus.

As an exercise for you, here is a little task for you to work out. Microsoft gives Windows to OEMs under a license that allowes modification of certain files. This then creates a derivate work. This work is then placed on some kind of media and shipped to customers, who also have the license to modify, copy and distribute those same files and create yet another derivative (usually this is for the purposes of preinstallation). The customers have no direct contact with Microsoft whatsoever (no privity). Microsoft's license specifically covers redistribution derivate works and places heavy conditions on that redistribution. If effect, Microsoft is creating "new rights against the world". Does that make this licensing invalid too?

* Enforcing the GNU GPL
http://www.fsf.org/philosophy/enforcing-gpl.html

QUOTE
Microsoft's anti-GPL offensive this summer has sparked renewed speculation about whether the GPL is ``enforceable.'' This particular example of ``FUD'' (fear, uncertainty and doubt) is always a little amusing to me. I'm the only lawyer on earth who can say this, I suppose, but it makes me wonder what everyone's wondering about: Enforcing the GPL is something that I do all the time.

Because free software is an unorthodox concept in contemporary society, people tend to assume that such an atypical goal must be pursued using unusually ingenious, and therefore fragile, legal machinery. But the assumption is faulty. The goal of the Free Software Foundation in designing and publishing the GPL, is unfortunately unusual: we're reshaping how programs are made in order to give everyone the right to understand, repair, improve, and redistribute the best-quality software on earth. This is a transformative enterprise; it shows how in the new, networked society traditional ways of doing business can be displaced by completely different models of production and distribution. But the GPL, the legal device that makes everything else possible, is a very robust machine precisely because it is made of the simplest working parts.

The essence of copyright law, like other systems of property rules, is the power to exclude. The copyright holder is legally empowered to exclude all others from copying, distributing, and making derivative works.

This right to exclude implies an equally large power to license--that is, to grant permission to do what would otherwise be forbidden. 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.

But most proprietary software companies want more power than copyright alone gives them. These companies say their software is ``licensed'' to consumers, but the license contains obligations that copyright law knows nothing about. Software you're not allowed to understand, for example, often requires you to agree not to decompile it. Copyright law doesn't prohibit decompilation, the prohibition is just a contract term you agree to as a condition of getting the software when you buy the product under shrink wrap in a store, or accept a ``clickwrap license'' on line. Copyright is just leverage for taking even more away from users.

The GPL, on the other hand, subtracts from copyright rather than adding to it. The license doesn't have to be complicated, because we try to control users as little as possible. Copyright grants publishers power to forbid users to exercise rights to copy, modify, and distribute that we believe all users should have; the GPL thus relaxes almost all the restrictions of the copyright system. The only thing we absolutely require is that anyone distributing GPL'd works or works made from GPL'd works distribute in turn under GPL. That condition is a very minor restriction, from the copyright point of view. Much more restrictive licenses are routinely held enforceable: every license involved in every single copyright lawsuit is more restrictive than the GPL.

Because there's nothing complex or controversial about the license's substantive provisions, I have never even seen a serious argument that the GPL exceeds a licensor's powers.
UNQUOTE

Daniel Wallace, Read the next two paragraphs

QUOTE
But it is sometimes said that the GPL can't be enforced because users haven't ``accepted'' it.

This claim is based on a misunderstanding. The license does not require anyone to accept it in order to acquire, install, use, inspect, or even experimentally modify GPL'd software. All of those activities are either forbidden or controlled by proprietary software firms, so they require you to accept a license, including contractual provisions outside the reach of copyright, before you can use their works. The free software movement thinks all those activities are rights, which all users ought to have; we don't even want to cover those activities by license. Almost everyone who uses GPL'd software from day to day needs no license, and accepts none. The GPL only obliges you if you distribute software made from GPL'd code, and only needs to be accepted when redistribution occurs. And because no one can ever redistribute without a license, we can safely presume that anyone redistributing GPL'd software intended to accept the GPL. After all, the GPL requires each copy of covered software to include the license text, so everyone is fully informed.

Despite the FUD, as a copyright license the GPL is absolutely solid. That's why I've been able to enforce it dozens of times over nearly ten years, without ever going to court.

Meanwhile, much murmuring has been going on in recent months to the supposed effect that the absence of judicial enforcement, in US or other courts, somehow demonstrates that there is something wrong with the GPL, that its unusual policy goal is implemented in a technically indefensible way, or that the Free Software Foundation, which authors the license, is afraid of testing it in court. Precisely the reverse is true. We do not find ourselves taking the GPL to court because no one has yet been willing to risk contesting it with us there.

So what happens when the GPL is violated? With software for which the Free Software Foundation holds the copyright (either because we wrote the programs in the first place, or because free software authors have assigned us the copyright, in order to take advantage of our expertise in protecting their software's freedom), the first step is a report, usually received by email to . We ask the reporters of violations to help us establish necessary facts, and then we conduct whatever further investigation is required.

We reach this stage dozens of times a year. A quiet initial contact is usually sufficient to resolve the problem. Parties thought they were complying with GPL, and are pleased to follow advice on the correction of an error. Sometimes, however, we believe that confidence-building measures will be required, because the scale of the violation or its persistence in time makes mere voluntary compliance insufficient. In such situations we work with organizations to establish GPL-compliance programs within their enterprises, led by senior managers who report to us, and directly to their enterprises' managing boards, regularly. In particularly complex cases, we have sometimes insisted upon measures that would make subsequent judicial enforcement simple and rapid in the event of future violation.

In approximately a decade of enforcing the GPL, I have never insisted on payment of damages to the Foundation for violation of the license, and I have rarely required public admission of wrongdoing. Our position has always been that compliance with the license, and security for future good behavior, are the most important goals. We have done everything to make it easy for violators to comply, and we have offered oblivion with respect to past faults.

In the early years of the free software movement, this was probably the only strategy available. Expensive and burdensome litigation might have destroyed the FSF, or at least prevented it from doing what we knew was necessary to make the free software movement the permanent force in reshaping the software industry that it has now become. Over time, however, we persisted in our approach to license enforcement not because we had to, but because it worked. An entire industry grew up around free software, all of whose participants understood the overwhelming importance of the GPL--no one wanted to be seen as the villain who stole free software, and no one wanted to be the customer, business partner, or even employee of such a bad actor. Faced with a choice between compliance without publicity or a campaign of bad publicity and a litigation battle they could not win, violators chose not to play it the hard way.

We have even, once or twice, faced enterprises which, under US copyright law, were engaged in deliberate, criminal copyright infringement: taking the source code of GPL'd software, recompiling it with an attempt to conceal its origin, and offering it for sale as a proprietary product. I have assisted free software developers other than the FSF to deal with such problems, which we have resolved--since the criminal infringer would not voluntarily desist and, in the cases I have in mind, legal technicalities prevented actual criminal prosecution of the violators--by talking to redistributors and potential customers. ``Why would you want to pay serious money,'' we have asked, ``for software that infringes our license and will bog you down in complex legal problems, when you can have the real thing for free?'' Customers have never failed to see the pertinence of the question. The stealing of free software is one place where, indeed, crime doesn't pay.

But perhaps we have succeeded too well. If I had used the courts to enforce the GPL years ago, Microsoft's whispering would now be falling on deaf ears. Just this month I have been working on a couple of moderately sticky situations. ``Look,'' I say, ``at how many people all over the world are pressuring me to enforce the GPL in court, just to prove I can. I really need to make an example of someone. Would you like to volunteer?''

Someday someone will. But that someone's customers are going to go elsewhere, talented technologists who don't want their own reputations associated with such an enterprise will quit, and bad publicity will smother them. And that's all before we even walk into court. The first person who tries it will certainly wish he hadn't. Our way of doing law has been as unusual as our way of doing software, but that's just the point. Free software matters because it turns out that the different way is the right way after all.

Eben Moglen is professor of law and legal history at Columbia University Law School. He serves without fee as General Counsel of the Free Software Foundation.

Copyright © 2001 Eben Moglen

Verbatim copying and distribution of this entire article is permitted in any medium, provided this notice is preserved.
UNQUOTE

Editorial correction to my preceding post.

"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."

Your "grant of property rights" is a copyright permission.
A grant of copyright permission is the waiver of a legal
right.

"In general a waiver of any legal right at the request
of another party is a sufficient consideration for a
promise." --- Parsons on Contracts, 444.

"It is not essential in order to make out a good
consideration for a promise to show that the promisor
was benefited or the promisee injured; a waiver on the part
of the latter of a legal right is sufficient."
--- Louisa W.Hamer v. Franklin Sidway 124 N.Y. 538; 27 N.E.
256; 1891 N.Y.(Court of Appeals of New York)

There are two exclusive permissions involved in allowing a
derivative work to be reproduced. The "preexisting" author's
permission and the "modifying" author's permission. Each
must agree to provide the waiver of a legal right. This is
the same thing as saying an agreement of "sufficient
consideration for a promise" from both parties.

That is the very legal definition of a contract. There is
nothing --- I repeat --- nothing in the body of American law
to bind these two permissions so as to permit distribution
of a derivative work except a claim of contract.

"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."

Your "grant of property rights" is a copyright permission.
A grant of copyright permission is the waiver of a legal
right.

"In general a waiver of any legal right at the request
of another party is a sufficient consideration for a
promise." --- Parsons on Contracts, 444.

"It is not essential in order to make out a good
consideration for a promise to show that the promisor
was benefited or the promisee injured; a waiver on the part
of the latter of a legal right is sufficient."
--- Louisa W.Hamer v. Franklin Sidway 124 N.Y. 538; 27 N.E.
256; 1891 N.Y.(Court of Appeals of New York)

There are two exclusive permissions involved in allowing a
derivative work to be reproduced. The "preexisting" author's
permission and the "modifying" author's permission. Each
must agree to provide the waiver of a legal right. This is
the same thing as saying an agreement of "sufficient
consideration for a promise" from both parties.

That is the very legal definition of a contract. There is
nothing --- I repeat --- nothing in the body of American
law to bind these two exclusive permissions so as to permit distribution of a derivative work except a claim of contract.

"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."Your mysterious grant of property
rights is a copyright permission. A copyright permission is a
waiver of an exclusive legal right."In general a waiver of
any legal right at the request of another party is a
sufficient consideration for a promise."(Parsons on
Contracts, 444.)"It is not essential in order to make out a
good consideration for a promise to show that the promisor
was benefited or the promisee injured; a waiver on the part
of the latter of a legal right is sufficient." Louisa W.
Hamey. Franklin Sidway 124 N.Y. 538; 27 N.E. 256; 1891
N.Y.(Court of Appeals of New York)You waive any exclusive
legal right and you have created sufficient consideration
for a promise. The is one of the oldest principles of
bargaining. Please cite case, statute or other legal
authority that demonstrates that the waiver of an exclusive
legal right is not a sufficient consideration for a promise.