15 Jan, 2008, Guest wrote in the 1st comment:
Votes: 0
KaVir posted the below as a response on TMC:

http://www.ilaw.com.au/public/licenceart...

Quote
"But what happens if the licensor of an open source software program wishes to change the conditions under which it is licensed? It is in this circumstance that we encounter the biggest deficiency of licence conditions as against contractual conditions. Because the licensee hasn't given any consideration in exchange for the software, the licence can be revoked by the licensor at any time simply by giving notice to the licensee.

"In the context of software licensing, this means that there is nothing that can be done to stop the licensor from changing the licence conditions, including makinq them non-free or withdrawing the software altogether. It doesn't matter if an open source licence claims to be irrevocable. Because the licence hasn't been paid for, it isn't."


I'm sure someone is going to want to see me dead for starting this here, but doesn't the logic presented also include such things as the GPL, whose supporters like to run around claiming "once public, always public" when dealing with code released under it? So if I release something using the GPL, can I not then later simply say "changed my mind, it's now X license instead" wouldn't I be legally in the right to do so and revoke all of the original GPL licenses?
15 Jan, 2008, David Haley wrote in the 2nd comment:
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I've heard straight from a lawyer that one can contrive consideration for software licenses easily enough. (Nothing says that consideration in a contract has to be particularly intelligent or valuable.) I also strongly disagree with the claim that if a license says it's irrevocable, it actually isn't, that notion is just silly – in general. The situation is murky for licenses that aren't even click-through. But if an actual signature is given, electronic or physical, that's all you need to make the situation a lot less ambiguous. Anyhow, since I don't really care for a long and protracted debate, I think I will resign myself to not really thinking about this too much and waiting until this gets tested in court; until then all of this is speculation. :shrug:
15 Jan, 2008, KaVir wrote in the 3rd comment:
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Samson said:
I'm sure someone is going to want to see me dead for starting this here, but doesn't the logic presented also include such things as the GPL, whose supporters like to run around claiming "once public, always public" when dealing with code released under it? So if I release something using the GPL, can I not then later simply say "changed my mind, it's now X license instead" wouldn't I be legally in the right to do so and revoke all of the original GPL licenses?


The linked article actually covers that very situation:

"This is one of the best kept secrets of the open source movement, and unsurprisingly it is not consistent with the public position of the Free Software Foundation (FSF). Richard M Stallman (RMS) has posed and answered this Frequently Asked Question on the FSF's Web site:

Can the developer of a program who distributed it under the GPL later license it to another party for exclusive use?

No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn.


There isn't any legal authority cited in support of that proposition. In fact, it seems to contradict clause 9 of the GPL which explicitly acknowledges that GPL software can be relicensed when a new version of the GPL is released. So although RMS may be correctly stating the law in some States of America (and he is literally correct that people can go on using the software, so long as they don't distribute it or modify it), he is without doubt incorrect as to the position in Australia.
"

Note that the author of the article is an IT lawyer with a practice in Internet-related law, and the manager of a company specialising in the use of open source software in networked environments and in the development of online systems. He also provides references to several court cases backing up his views.
15 Jan, 2008, Justice wrote in the 4th comment:
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The way I see this is pretty simple. The developer can re-release the code using a different license because they own the code. This however does not affect any code that was distributed with the previous license. Anybody using the code under that license is still bound by the license. In effect, the new release and previous releases would be considered different. The developer can decide to stop distributing the original release, but cannot prevent others from using any rights granted by the previous license.
15 Jan, 2008, KaVir wrote in the 5th comment:
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A licence is just a formalised way of giving someone permission to do something they couldn't normally do.

If I tell you "You can borrow my car at weekends", are you saying that I can never withdraw that offer? That if a few months down the line I find myself needing to work on Saturdays, that's just my tough luck - that your permission cannot be revoked, and I have to take the bus instead?
15 Jan, 2008, Brinson wrote in the 6th comment:
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I talked about this specific thing with a few lawyers I know, but more about builder contracts.

You need consideration to make a contract valid, but the standard for consideration is VERY low. It wouldn't be hard to make something up for consideration to validate a contract or license. A credit on the login screen for a mud they seemed to think would suffice as consideration, and I'd argue that the advertisement gained from the term "free software" as well as the collaborative input of the community would amount to consideration.
15 Jan, 2008, KaVir wrote in the 7th comment:
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Rather than everyone posting about how dozens of their lawyer friends have told them X, Y or Z, I think it would be far more constructive to stick to verifiable sources, much like Wikipedia requires for submitted material.

From the link I posted originally: http://www.ilaw.com.au/public/licenceart...

"Perhaps we can argue that there is some consideration on both sides of an open source licence agreement after all, and that the agreement is therefore enforceable as a contract. This would allow the agreement to be made irrevocable.

Take the example of the GPL. The licensee of GPL software does appear to be giving something in exchange for the use of the software. Firstly, the licensee makes a number of promises that I have described earlier, for example, to make the source code available at no charge when distributing the software, and to document any modifications. Second, the licensee is required to accept all risks involved in the use of the software. Surely these are worth something?

Unfortunately as far as the law is concerned, they are not. The GPL explicitly states, "Activities other than copying, distribution and modification are not covered by this License; they are outside its scope." Therefore there is no requirement on licensees to distribute the software at all, and if they don't, they are not agreeing to anything and not providing any consideration. The law takes the position that consideration isn't acceptable if the licensee has a choice about whether or not to provide it.

As for the licensee's acceptance of liability for faults in the software, this doesn't amount to sufficient consideration either, because there may not be any faults, or if there are, the licensee might not suffer any loss from them, or none that can be blamed on the licensor. It is only if the licensee actually has an existing right to sue the licensor, or at least honestly believes that he does, that an agreement not to sue can amount to good consideration.
"
15 Jan, 2008, David Haley wrote in the 8th comment:
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I'm not sure how sensible it is for everybody to be arguing about how the law works in different countries. I'm sure we could have all kinds of interesting debates if we compared US, Australian, French and Chinese (hey, there's a fun one) copyright law. But I'm also not sure what purpose it would serve.

In any case, I believe that in Australia just as in the USA, the ultimate test of these things is outcome in court. Therefore I think it would be most productive to provide actual examples of case law to settle the matter; otherwise this is pretty much just speculation.
15 Jan, 2008, KaVir wrote in the 9th comment:
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Here's another interesting article, written by Pamela Jones, Editor of Groklaw: http://www.gnu.org/philosophy/enforcing-...

The article is entitled "The GPL Is a License, not a Contract", but of particular interest IMO are the quotes attributed to Eben Moglen (professor of law and legal history at Columbia University, and the founder, Director-Counsel and Chairman of Software Freedom Law Center):

"The word 'license' has, and has had for hundreds of years, a specific technical meaning in the law of property. A license is a unilateral permission to use someone else's property. The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property.

A contract, on the other hand, is an exchange of obligations, either of promises for promises or of promises of future performance for present performance or payment. The idea that 'licenses' to use patents or copyrights must be contracts is an artifact of twentieth-century practice, in which licensors offered an exchange of promises with users: 'We will give you a copy of our copyrighted work,' in essence, 'if you pay us and promise to enter into certain obligations concerning the work.' With respect to software, those obligations by users include promises not to decompile or reverse-engineer the software, and not to transfer the software.

The GPL, however, is a true copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor. Copyright holders of computer programs are given, by the Copyright Act, exclusive right to copy, modify and redistribute their programs. The GPL, reduced to its essence, says: 'You may copy, modify and redistribute this software, whether modified or unmodified, freely. But if you redistribute it, in modified or unmodified form, your permission extends only to distribution under the terms of this license. If you violate the terms of this license, all permission is withdrawn.'
"
16 Jan, 2008, Justice wrote in the 10th comment:
Votes: 0
KaVir said:
A licence is just a formalised way of giving someone permission to do something they couldn't normally do.

If I tell you "You can borrow my car at weekends", are you saying that I can never withdraw that offer? That if a few months down the line I find myself needing to work on Saturdays, that's just my tough luck - that your permission cannot be revoked, and I have to take the bus instead?


Well, that's a pretty ignorant example. The laws regarding software are different than those of physical objects, and there is a huge difference between a license and "i tell you".
16 Jan, 2008, David Haley wrote in the 11th comment:
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There's also a huge difference between such a proposition, and a proposition that adds "this proposition may not be revoked unilaterally except under conditions X, Y, and Z".
16 Jan, 2008, Conner wrote in the 12th comment:
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Samson said:
I'm sure someone is going to want to see me dead for starting this here […]

Dead for it? Don't think we're just going a wee bit overboard on the dramatics, eh? :lol:
Castrated maybe.. :wink: Nah, seriously, I'd have rather left this one stewing over on TMC than read it twice, especially given that the folks who are most likely to respond to it here are all the same ones who already respond to it there, but I do understand your motivation for bringing it here. :shrug:

Any chance that, rather than my having to participate in or follow this thread to it's completion, someone could just let me know how it ends when it does? :wink:
16 Jan, 2008, KaVir wrote in the 13th comment:
Votes: 0
Justice said:
Well, that's a pretty ignorant example. The laws regarding software are different than those of physical objects, and there is a huge difference between a license and "i tell you".


This isn't about the specific details of the laws, it's about the general principle - to licence or grant licence is just to give permission, or perhaps more accurately, it's a promise by the licensor not to sue the licensee. If you don't like the car example, try Eben Moglen's property law example quoted above:

"The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property".

DavidHaley said:
There's also a huge difference between such a proposition, and a proposition that adds "this proposition may not be revoked unilaterally except under conditions X, Y, and Z".


Well I've already quoted a lawyer who says that a licence can be revoked at any time, even if it explicitly says otherwise, so you're going to need to back up your claim with a verifiable source.

Are you saying that (to use Eben Moglen's example) if I invite you to into my house, I can never make you leave again, unless I explicitly state up front that I reserve the right to revoke your invitation?
16 Jan, 2008, Tommi wrote in the 14th comment:
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GPL's US Test. Linux User and Developer Issue 75

I wont copy the article verbatim, but in summery Monsoon Multimedia is being sued for using GPL busybox code in their commercial products without releasing the code back to the community. Software Freedom Law Center are acting on behalf of the Busybox project to bring this claim in the Manhattan Federal District Court.

And while this hasn't much to do with the topic of this thread, it will show whether the GPL is lawfully enforceable and may allude to the validity of other points made above.
16 Jan, 2008, Guest wrote in the 15th comment:
Votes: 0
A link to the article would be nice, there are plenty of lazy people, myself included, who would prefer to be able to jump right to it instead of taking 30 seconds to Google it :P

… Actually… wtf… the news links on that site are ancient history and there's no sign of the article you mention?
16 Jan, 2008, Justice wrote in the 16th comment:
Votes: 0
KaVir said:
This isn't about the specific details of the laws, it's about the general principle - to licence or grant licence is just to give permission, or perhaps more accurately, it's a promise by the licensor not to sue the licensee. If you don't like the car example, try Eben Moglen's property law example quoted above:

Actually this is about the law. A license is more than just a promise by the licensor to not sue the licensee. In fact, a license isn't required to provide that protection. It's a formal declaration of rights and protections.

KaVir said:
"The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property".

Once again, an ignorant example. In fact it's the same example you used before, but somehow you expect it to have more weight because it's "quoted".

While it may not hold the same weight as a signed contract, a license is a formal agreement between 2 parties. An "invitation" is informal. "I tell you" is informal. Once again, your house is a physical property, which is governed by property laws. If someone makes a second house, even if it identical it is not your house. For this reason, software is generally covered by the same laws as literature.

These differences become more apparent when you allow the licensee to modify their copy of the "software". At this point, the licensee has full ownership to the code that they have written and a revocation of rights from the licensor has real and direct impact to the licensee.

On one final note, in the US at least, if you invite someone into your house, you cannot sue them for trespassing. You can however make them leave.
16 Jan, 2008, David Haley wrote in the 17th comment:
Votes: 0
KaVir said:
Well I've already quoted a lawyer who says that a licence can be revoked at any time, even if it explicitly says otherwise, (…)

Actually, KaVir, I believe that the burden of proof is on you to provide case law, as you are the one asserting something that goes against the very definition of the words being used ('irrevocable' in particular). I've heard the contrary from lawyers: on the face of it, if a license says "irrevocable", then it is irrevocable for those people who have agreed to it. But that's irrelevant in the end of the day. What matters is whether or not somebody has actually revoked an "irrevocable" license, and the courts have actually allowed it. If that is the case, please provide evidence to that effect. It would also help to specify which country's legal system you're talking about since I have the feeling several might be being mixed here.

The house example is quite different; I call false analogy. Justice gave good reasons for why it's a bad analogy. But I'm not interested in a better analogy. I'm interested in case law at this point and nothing more…
16 Jan, 2008, KaVir wrote in the 18th comment:
Votes: 0
Justice said:
KaVir said:
This isn't about the specific details of the laws, it's about the general principle - to licence or grant licence is just to give permission, or perhaps more accurately, it's a promise by the licensor not to sue the licensee. If you don't like the car example, try Eben Moglen's property law example quoted above:

Actually this is about the law. A license is more than just a promise by the licensor to not sue the licensee. In fact, a license isn't required to provide that protection.


http://www.ca9.uscourts.gov/web/sdocumen...

"A license agreement is essentially a promise by the licensor not to sue the licensee. See Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir.1988). When a copyright owner grants a nonexclusive license to use the owner’s copyrighted materials, the owner waives the right to sue the licensee for infringement and can only sue for breach of contract. See Sun Microsystems, Inc. v. Microsoft, Inc., 188 F.3d 1115, 1121 (9th Cir.1999)."

Justice said:
KaVir said:
"The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property".
Once again, an ignorant example.


Here's Eben Moglen's profile: http://en.wikipedia.org/wiki/Eben_Moglen

Eben Moglen is a professor of law and legal history at Columbia University, and founder, Director-Counsel and Chairman of Software Freedom Law Center, whose client list includes numerous pro bono clients, such as the Free Software Foundation.

Who are you? What are your sources? Why should I accept your word over his?
16 Jan, 2008, KaVir wrote in the 19th comment:
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DavidHaley said:
Actually, KaVir, I believe that the burden of proof is on you to provide case law, as you are the one asserting something that goes against the very definition of the words being used


Read the links I provided. You're not really going to start that whole childish forcing-me-to-constantly-repeat-the-same-links-over-and-over-and-over thing again, are you?
16 Jan, 2008, David Haley wrote in the 20th comment:
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Stuff the attitude, KaVir… You gave a link to an Australian law argument – not case law. Then you gave a link to GNU – not case law. You cited Eben Moglen a bunch. Only just now did you cite something with 'uscourts.gov' as the domain, but it still does not appear to be case law. I asked for case law. Give me case law. Oh, and since I'm in the US, give me US case law, since other case law is irrelevant to me. (But if you have it, let's see it too, for kicks.)

EDIT: and the uscourts.gov stuff you cite doesn't talk about irrevocable licenses, merely what licenses are in general…
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