16 Jan, 2008, Guest wrote in the 21st comment:
Votes: 0
The uscourts.gov link looks to me to be a valid case law cite, but not for the irrevocability point that's being argued here.

Australian law arguments are great if you're in Australia. Outside of Australia they're pretty worthless, even on copyright law covered by treaty. Licenses are even less universally defined. What may be valid in one country could be completely bogus in another. US case law is largely useless in Europe and vice versa.
17 Jan, 2008, Tommi wrote in the 22nd comment:
Votes: 0
Samson said:
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?


Sorry i didnt find it on a website, its in the copy of the magazine i have sitting on my desk. If you would like i could scan it and send you the entire article, its not very long.

I have scanned it and uploaded to a website, http://www.4everdarkness.eldhamud2.org/d...
19 Jan, 2008, KaVir wrote in the 23rd comment:
Votes: 0
DavidHaley said:
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.


There isn't any. The GPL hasn't yet been tested in court. The best I can give you is stuff like this:

From the book "Open Source Licensing: Software Freedom and Intellectual Property Law" by Lawrence Rosen, an attorney and founding partner of Rosenlaw & Einschlag, a Californian technology law firm specialising in intellectual property protection, licensing and business transactions for technology companies. He's also an important advisor to the open source movement, having written some of their licenses.

Quotes taken from Chapter 4: Taxonomy of Licenses

PDF: http://www.rosenlaw.com/Rosen_Ch04.pdf
HTML: http://209.85.135.104/search?q=cache:50P...
Full book: http://www.amazon.com/Open-Source-Licens...

"Some legal scholars even argue that terms and conditions of bare licenses like the GPL are completely unenforceable, although the legitimacy of the GPL has never been tested in any court. Neither have any other open source licenses. This vague uncertainty hovering over bare licenses like the GPL has not been much of an obstacle to the adoption of GPL-licensed software, but it is unpleasant for attorneys nonetheless."

"A third problem with bare licenses is that they may be revocable by the licensor. Specifically, a license not coupled with an interest may be revoked. The term interest in this context usually means the payment of some royalty or license fee, but there are other more complicated ways to satisfy the interest requirement. For example, a licensee can demonstrate that he or she has paid some consideration – a contract law term not found in copyright or patent law – in order to avoid revocation. Or a licensee may claim that he or she relied on the software licensed under an open source license and now is dependent upon that software, but this contract law concept, called promissory estoppel, is both difficult to prove and unreliable in court tests. (The concepts of consideration and promissory estoppel are explained more fully in the next section.) Unless the courts allow us to apply these contract law principles to a license, we are faced with a bare license that is revocable."

"Most of those issues about bare licenses have never been addressed directly in a court so lawyers have no good way to predict how they will ultimately be answered. In the absence of a court decision interpreting bare open source copyright licenses, distributors of software under such licenses should ask their attorneys whether they have adequate protection."


If you're only going to accept court cases, you'll have to wait for some.
19 Jan, 2008, Tommi wrote in the 24th comment:
Votes: 0
Would the email clause in the diku license fulfill the idea of consideration, assuming that you can prove that you send said email, thus making the license irrevocable.

Sending the email is a demonstration that you agree to the terms of the license, in much the same way as clicking on a I Agree button or similar.
19 Jan, 2008, David Haley wrote in the 25th comment:
Votes: 0
Rosen said:
Some legal scholars even argue that terms and conditions of bare licenses like the GPL are completely unenforceable

Interesting… I seem to remember being slammed for saying that a license could have unenforceable terms… :wink:
Rosen said:
A third problem with bare licenses is that they may be revocable by the licensor. (…) Or a licensee may claim that he or she relied on the software licensed under an open source license and now is dependent upon that software

Note that this doesn't say anything about whether or not the license was explicitly marked as irrevocable.
Rosen said:
Most of those issues about bare licenses have never been addressed directly in a court so lawyers have no good way to predict how they will ultimately be answered.

Emphasis mine – I think this is probably the most important point here, and is why I'm asking for case law. While we could go in circles for a very, very long time, the citation you provide says that even lawyers aren't sure what will happen. Case law is the only way to find out for sure…

Incidentally, I'm not just interested in the GPL, but in licenses in general.
19 Jan, 2008, Guest wrote in the 26th comment:
Votes: 0
Well according to the article Tommi posted the scan to we should get our first US test of the GPL soon. It won't address the specific issue of irrevocability though, but something that proceeds to judgment would be helpful.

I too am interested in more than just the GPL as a license, but the GPL is the one most often thrown about as being both legally sound and irrevocable once the code is out there.
19 Jan, 2008, KaVir wrote in the 27th comment:
Votes: 0
Tommi said:
Sending the email is a demonstration that you agree to the terms of the license, in much the same way as clicking on a I Agree button or similar.


That's acceptance, not consideration.

DavidHaley said:
Note that this doesn't say anything about whether or not the license was explicitly marked as irrevocable.


Later in the same article:

"To cut to the chase, I’ll refer to the following Simple License:

The copyright owner of this software hereby licenses it to you for any purpose whatsoever.

This is, of course, a bare license. Like any bare license, it is enforceable by the copyright owner under copyright law and can be revoked by the licensor at any time.
"

DavidHaley said:
Incidentally, I'm not just interested in the GPL, but in licenses in general.


Well as the Rosen stated, "…the legitimacy of the GPL has never been tested in any court. Neither have any other open source licenses". If you want to look outside of software, though, there are various examples of "bare licence" cases, eg:

http://www.studentatlaw.com/articles/44/...

"A person who enters the land for a purpose not covered by the license is a trespasser, even though a license to enter exists; Barker v The Queen (1983)

A bare license may be revoked at any time and the licensee required leaving the premises. Should the licensee fail to do so within a reasonable time, he/she becomes a trespasser.

Trespass after lawful entry by licensee

Bond v Kelly (1873); cutting more than the permitted amount of timber of land which he had been permitted to enter – trespass held.

One who entered land under authority of law might become a trespasser ab initio, that is from the moment of entering because of actions committed subsequent to entry which were an abuse of the purpose of that entry.

Applied where the right to enter was conferred by law; acts of misfeasance committed on the land, not to non-misfeasance; where some ground exists justifying an original lawful entry despite latter acts of trespass committed on the premises, no trespass ab initio.

Continuing trespass arises where, after an initial trespassory entry or failure to leave land, the person or object constituting the trespass remains on the land.

Konskier v Goodman Ltd [1928] – contractor failed to remove rubbish left behind after completion of work, became trespassory on later failure to remove the rubbish in breach of contract.
"
19 Jan, 2008, David Haley wrote in the 28th comment:
Votes: 0
KaVir said:
DavidHaley said:
Note that this doesn't say anything about whether or not the license was explicitly marked as irrevocable.


Later in the same article:

"(…)Like any bare license, it is enforceable by the copyright owner under copyright law and can be revoked by the licensor at any time."

It is not really surprising, nor I believe contested, that a license explicitly saying that it may be revoked is revocable. I believe the question was whether or not a license that explicitly says it may not be revoked may still be revoked. (Modulo conditions under which the license says it can be revoked.)
19 Jan, 2008, KaVir wrote in the 29th comment:
Votes: 0
DavidHaley said:
It is not really surprising, nor I believe contested, that a license explicitly saying that it may be revoked is revocable. I believe the question was whether or not a license that explicitly says it may not be revoked may still be revoked. (Modulo conditions under which the license says it can be revoked.)


Ah, I misread your previous comment. The point I was making was that Rosen's "Simple License" example doesn't say it can be revoked - but it still can be. In other words the licence doesn't explicitly need to say that it may be revoked in order to be revocable. This would cover most mud licences I've seen - they simply don't mention whether or not they can be revoked.

On the other hand the GPL explicitly says that it cannot be revoked, and the views on that seem far more contested; the author of the original article I quoted stated that although Richard M Stallman "…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". In other words, it depends on regional laws.

Going back to Rosen's article again, he mentions:

"…GPL licensors are in essentially the same situation as other open source licensors who cannot prove offer, acceptance, or consideration. There is no contract."

But also goes on to say:

"A court may find detrimental reliance by licensees who have accepted open source software for use in the infrastructure of the modern economy. It is inconceivable to me, for example, that licensors of Linux, or Apache, or any of the other major open source software packages, would be allowed to revoke their licenses for lack of consideration. But it remains to be seen whether promissory estoppel will generally serve as a substitute for consideration in open source licensing. It has never been tested in court."

I realise this still doesn't answer your question, but as stated in the last line of the above quote, "It has never been tested in court".
20 Jan, 2008, David Haley wrote in the 30th comment:
Votes: 0
KaVir said:
The point I was making was that Rosen's "Simple License" example doesn't say it can be revoked - but it still can be. In other words the licence doesn't explicitly need to say that it may be revoked in order to be revocable.

I don't think this is being disputed either, at least not by me. It makes sense that even if you don't state revocability you may revoke it.

I guess what it comes down to in the end is that we'll have to see what happens in court, if indeed this ever goes to court… I'm guessing that it will at some point, given the rather litigation-happy environment we have at least in the US.
20 Jan, 2008, Justice wrote in the 31st comment:
Votes: 0
KaVir, I don't see how this quote supports your argument that you can revoke a license. It says pretty much that once a license is given, you're only recourse is to sue them for breach of contract. Which supports my supposition that a license is a form of agreement. Also that quote is a small portion of the document, the rest of which describe how you can grant other rights to the recipient of the license.

KaVir said:
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)."


KaVir said:
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?


Who he is irrelevant, since you're quoting him about an entirely different body of law. It'd be like quoting Einstein's theory of relativity at a literature convention.
20 Jan, 2008, KaVir wrote in the 32nd comment:
Votes: 0
Justice said:
KaVir, I don't see how this quote supports your argument that you can revoke a license.


That's because it wasn't made in response to that argument. It was made to point out that, despite your claims to the contrary, a license agreement is essentially a promise by the licensor not to sue the licensee.

Justice said:
It says pretty much that once a license is given, you're only recourse is to sue them for breach of contract.


Which obviously only applies in the case of contracts. What we're talking about now are bare licenses - and to quote Rosen, "Unless the courts allow us to apply these contract law principles to a license, we are faced with a bare license that is revocable".

Justice said:
Which supports my supposition that a license is a form of agreement.


No, an agreement between two parties (i.e., offer and acceptance) is part of contract law. To quote Rosen once more (as he's US-based and has a nice long article):

"Among the examples I cited in the previous section was one about drivers’ licenses. A driver’s license is issued by a government agency, but it does not constitute an agreement of any sort between the driver and the agency. There is no contract; the driver’s license is merely a permission slip. The licensor has made no promises and neither has the licensee."
01 Feb, 2008, David Haley wrote in the 33rd comment:
Votes: 0
Well, here's a rather interesting take on this question, in light of the above discussion. From Groklaw:

Groklaw said:
No. One can't retroactively revoke licenses previously granted, unless the license terms allow you to do so.
The most you can do is stop granting new licenses.


The post also claims that this was verified by an attorney, for whatever that is worth. I maintain my mantra that it remains more or less informed speculation until verified in court, of course.
01 Feb, 2008, Guest wrote in the 34th comment:
Votes: 0
Interesting read David. I don't think anyone has considered the angle of public harm in any of the many licensing debates which have taken place. It would be reasonable to conclude, based on this, that the Diku team might not be able to revoke their license because it would cause great public harm to the community which has relied on the software for so long.
01 Feb, 2008, KaVir wrote in the 35th comment:
Votes: 0
Yesterday, a bloke down the pub told me that the world is flat. He claimed that it's been verified by a wizard.
01 Feb, 2008, David Haley wrote in the 36th comment:
Votes: 0
You often quote Groklaw, KaVir, so it's kind of surprising to see you so blatantly reject it now that it disagrees with you. :wink:
01 Feb, 2008, KaVir wrote in the 37th comment:
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I've already quoted from the arcane texts of several powerful wizards, but I've long since grown tired of this debate (remember, I had to discuss it on TMC as well, before Samson copied it over here). I want to see those wizards start throwing fireballs at each other.
01 Feb, 2008, David Haley wrote in the 38th comment:
Votes: 0
Now that would be quite a sight… I'd vote for fireballs too.
02 Feb, 2008, drrck wrote in the 39th comment:
Votes: 0
DavidHaley said:
Well, here's a rather interesting take on this question, in light of the above discussion. From Groklaw:

Groklaw said:
No. One can't retroactively revoke licenses previously granted, unless the license terms allow you to do so.
The most you can do is stop granting new licenses.


The post also claims that this was verified by an attorney, for whatever that is worth. I maintain my mantra that it remains more or less informed speculation until verified in court, of course.


If that's true, and following what KaVir quoted about driver's licenses, does that mean that since I never signed a contract that explicitly stated that they could revoke my license, that I can get as many points on it as I want without fear of revocation? :P
02 Feb, 2008, Guest wrote in the 40th comment:
Votes: 0
Somehow I'm guessing a driver's license is governed using an entirely different set of laws than software licensing is, and the analogy likely doesn't apply :)
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