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Linux.SYS-CON.com FEEDBACK: "The Copyleft/GPL Is Unequivocally a License"

"The GPL license has been scrutinized by the finest legal minds looking for loopholes and has still stood for over a decade."

  • Read Daniel Wallace's original Letter to the Editor
  • Read response to Daniel Wallace by Celia Santander Esq.

    Writing in refutation of Daniel Wallace's January 30 Letter to the Editor, David Mohring notes:

    1) The GPL License is a grant of rights, not a contract.
    2) Grants of rights do not require consideration.
    3) Federal copyright law trumps local state laws.

    "The flaw logic Daniel Wallace uses has been raised," observes Mohring, "and utterly refuted many times since it was first put forward over a DECADE ago."

    Mohring then adduces a Usenet thread from 1989-10-16 from which he quotes what he terms a "definitive reply" by Michael C. Berch, Member of the California Bar:

    "My analysis is as follows:

    1. The Copyleft/GPL is unequivocally a license. The concept of a license for copyrighted material is very well developed in copyright case law, and there is nothing about the Copyleft/GPL that would render it anything other than a license. There are many examples of public licenses for copyrighted material; most of them simply add terms such as requiring identification of the source of the material; forbidding changes except for personal use (i.e., reserving from the license the right to make derivate works); granting the right to copy for noncommercial use only, etc. There is nothing in copyright case law to suggest that these (public) licenses are invalid.

    2. Under copyright case law, there is no requirement that a license of copyright be supported by consideration (compensation). This is because it is not a contract but a grant of property rights. Contracts require consideration, but grants do not. This is an elementary and well-settled principle of property law.

    3. In the United States, the Copyright Act of 1976 pre-empts all state law that previously dealt with intellectual property rights in the matter subject to the Act (as defined in Sections 102 of the Act). This was the explicit intent of Congress and has been repeatedly upheld by the courts. Therefore, any pre-existing state law that purported to modify the nature or terms of a license of copyright would be pre-empted, and any subsequent state law that did likewise would be inoperative. In either case, I doubt if the state law would operate in any case to render the Copyleft/GPL unenforceable, because it is a grant and not a contract."

    Mohring continues. "Note that in the same post Michael C. Berch also states:"

    "I don't understand what Mr. Klossner means by "The copyleft is not a license, it is the terms of a 'publication' in the parlance of copyright law"; in copyright law, a work is either published or not published, and if the work is not published, much of the Act does not apply. However, there is no doubt that the GNU programs are published within the meaning of the Act (section 101), so I don't know what the concept of "terms" is supposed to refer to here. I have been a frequent critic of FSF and the political and philosophical underpinnings of Project GNU, and more recently of Richard Stallman's attempts to use publicly-funded networks for partisan political advocacy, but I find nothing in the GNU Public License that would render it unenforceable under copyright law or federal or state common law."
    -- Michael C. Berch
    Member of the California Bar
    [email protected] / uunet!tis.llnl.gov!mcb

    In summary, Mohring says: "The GPL license has been scrutinized by the finest legal minds looking for loopholes and has still stood for over a decade. Even Microsoft, for whom the GPL is such an anathema, distribute the GPL licensed GCC compiler toolchain with interix/SFU, have chosen to abide by the terms of the GPL rather than to challenge it in court."

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