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[209.132.180.67]) by mx.google.com with ESMTP id 4-v6si11223169pfe.142.2018.10.26.06.25.10; Fri, 26 Oct 2018 06:25:25 -0700 (PDT) Received-SPF: pass (google.com: best guess record for domain of linux-kernel-owner@vger.kernel.org designates 209.132.180.67 as permitted sender) client-ip=209.132.180.67; Authentication-Results: mx.google.com; spf=pass (google.com: best guess record for domain of linux-kernel-owner@vger.kernel.org designates 209.132.180.67 as permitted sender) smtp.mailfrom=linux-kernel-owner@vger.kernel.org Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S1726852AbeJZV7n (ORCPT + 99 others); Fri, 26 Oct 2018 17:59:43 -0400 Received: from moglen4.apt.columbia.edu ([160.39.60.15]:47413 "EHLO moglen4.apt.columbia.edu" rhost-flags-OK-OK-OK-OK) by vger.kernel.org with ESMTP id S1726014AbeJZV7n (ORCPT ); Fri, 26 Oct 2018 17:59:43 -0400 X-Greylist: delayed 424 seconds by postgrey-1.27 at vger.kernel.org; Fri, 26 Oct 2018 17:59:43 EDT Received: from localhost (moglen1.apt.columbia.edu [160.39.60.12]) by moglen4.apt.columbia.edu (Postfix) with ESMTPSA id 368512E01F2; Fri, 26 Oct 2018 13:15:34 +0000 (UTC) Date: Fri, 26 Oct 2018 09:15:33 -0400 Message-Id: <849-Fri26Oct2018091533-0400-eben@harlan.sflc-vpn> X-Mailer: emacs 23; VM 8.1.0 under 23.2.1 (i486-pc-linux-gnu) MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit To: esr@thyrsus.com Cc: gregkh@linuxfoundation.org, visionsofalice@redchan.it, linux-kernel@vger.kernel.org, rms@gnu.org, bruce@perens.com, bkuhn@sfconservancy.org, editor@lwn.net, neil@brown.name, labbott@redhat.com, torvalds@linux-foundation.org, ksummit-discuss@lists.linuxfoundation.org, tglx@linutronix.de, olof@lixom.net, clm@fb.com, mishi@linux.com, linux-kernel-owner@vger.kernel.org Subject: Re: The linux devs can rescind their license grant. In-Reply-To: Eric S. Raymond's message of Thu, 25 Oct 2018 15:39:01 -0400 <20181025193901.GD26403@thyrsus.com> References: <20181020134908.GA32218@kroah.com> <87y3ar80ac.fsf@notabene.neil.brown.name> <185b786a2bd6e8d527dca161dc42e4f1@redchan.it> <20181025081911.GB11343@kroah.com> <20181025193901.GD26403@thyrsus.com> From: Eben Moglen Reply-To: Eben Moglen Sender: linux-kernel-owner@vger.kernel.org Precedence: bulk List-ID: X-Mailing-List: linux-kernel@vger.kernel.org On Thursday, 25 October 2018, Eric S. Raymond wrote: Under Jacobsen vs. Katzer (535 f 3d 1373 fed cir 2008) authors of GPLed software have a specific right to relief (including injunctive relief) against misappropriation of their software. That ruling (which was the case of first impression on the binding status of the GPL) No, Eric, _Jacobsen_ v. _Katzer_ has nothing to do with GPL. The license terms on the software at issue were Artistic 1.0. The GPL is mentioned in an informational footnote only. The case has little legal weight, for procedural reasons, and is most certainly not "the case of first impression on the binding status of the GPL." reputational damage is *specifically* recognized as grounds for relief. No. Reputational damage is not mentioned at all, let alone specifically recognized. The District Court opinion that was overturned in the Court of Appeals had held that licenses that don't require payment of royalties are unenforceable, which was not copyright law of any kind. The CAFC, guessing about the content of Ninth Circuit law under the jurisdictional rules of the appeal (a state of affairs which leaves no real precedential weight at all behind the opinion) rightly discovered that there are "economic interests" furthered by free licensing. Reputational interests are not among those mentioned. This is a public document anyone can read. I'm a little surprised you didn't check before asserting. The anti-CoC dissidents don't have to rescind their license grant to cause a great deal of trouble. Instead they can invoke the doctrine established in Jacobsen vs. Katzer, seeking restraining orders. They can do neither. There is no "doctrine established in Jacobsen." The license terms of the GPLv2, GPLv3, and all related licenses provide a mode of termination---for imposition of additional restrictions or violation of other terms. This termination provision, being explicit, is therefore the sole form of termination recognized under the terms of the Copyright Act. The line of argument is so simple that I could probably brief it myself, and I'm not a lawyer Law school exists to give people who are not yet lawyers a healthy respect for what they cannot do. This discussion has been a riot of amateur opining, but practicing law without a license is always a bad idea. For that matter, I don't think the question of whether the GPL can be rescinded is settled - nor does my wife Cathy Raymond, Esq., a practicing attorney who has also studied the relevant law. It is settled. Indeed, it was never in doubt. When Jerry Cohen made GPLv2 he was of course asked by Richard to make an irrevocable license. He did so. The US law provides that this license cannot be terminated except on its stated terms. But the basis of that rule, which is statutory, was not reliable under non-US law, so in GPLv3 I "codified" the US result in the license terms, as we did with various other features in which GPLv2 assumed the US law background. What the discussion set off by the present CoC controversy showed me was that there was no accessible, legally-accurate description of US copyright license termination law as it affects the various FOSS licenses in particular. I wrote such an article and began preparing it for publication, but was interrupted in that work by my mother's last illness and death. In the meantime everything said on all sides, for and against, has been wrong. The correct legal analysis has been offered nowhere. As I am beginning to return to work, I will publish the article soon. For now, the headline is that Greg is correct. There is nothing in the repeated assertions that some form of withdrawal of licensed rights or attacks on the copyright status of the kernel are a possible response to disagreement over changes in internal project governance. It's a small point---and like all the other supposed points raised so far, irrelevant---but I should say in passing, after years of teaching the basic Property course at Columbia and Harvard law schools, that Bruce Perens gave as succinct a description of the "rule against perpetuities" as I ever hear from a beginner in the classroom. In the English legal history course that I also teach (almost the only place in a modern law school in which the law of future interests is seriously considered), more is said. But the key point is that the "rule against perpetuities" is not a rule against perpetuities. The confusion on this point is one of the clearest signs that the writer or writers using various pseudonyms is/are not, whatever s/he claims, a US or UK lawyer at all. Eben -- Eben Moglen v: 212-461-1901 Professor of Law, Columbia Law School f: 212-854-7946 moglen@ 435 West 116th Street, New York City, NY 10027 columbia.edu Founding Director, Software Freedom Law Center softwarefreedom.org