Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S932655AbXBSVuI (ORCPT ); Mon, 19 Feb 2007 16:50:08 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S932715AbXBSVuI (ORCPT ); Mon, 19 Feb 2007 16:50:08 -0500 Received: from wr-out-0506.google.com ([64.233.184.232]:34198 "EHLO wr-out-0506.google.com" rhost-flags-OK-OK-OK-OK) by vger.kernel.org with ESMTP id S932655AbXBSVuG (ORCPT ); Mon, 19 Feb 2007 16:50:06 -0500 DomainKey-Signature: a=rsa-sha1; c=nofws; d=gmail.com; s=beta; h=received:message-id:date:from:to:subject:cc:in-reply-to:mime-version:content-type:content-transfer-encoding:content-disposition:references; b=saeEEPDlUGxJ8/suuGPdGSS7I54922RQ+oSbx0u0QJ7vzIKH5HKxJMQ3B3lcSVbZqJ71lSWxzzbhxXBb4IvUxkh55jIzimbedHYakXnOiV1pvuYmFV4vO7DaKJzyJagb8V4GqHmATS3fADw0T6erQsbedPIruGWuMZsAHQfzuyE= Message-ID: Date: Mon, 19 Feb 2007 13:50:05 -0800 From: "Michael K. Edwards" To: "linux-os (Dick Johnson)" Subject: Re: GPL vs non-GPL device drivers Cc: Alan , "Scott Preece" , "Alexandre Oliva" , davids@webmaster.com, "Linux-Kernel@Vger. Kernel. Org" In-Reply-To: MIME-Version: 1.0 Content-Type: text/plain; charset=UTF-8; format=flowed Content-Transfer-Encoding: 7bit Content-Disposition: inline References: <7b69d1470702171129x36c4352cyc5b3a4b217729bf5@mail.gmail.com> <20070219203149.27c3b696@localhost.localdomain> Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org Content-Length: 3564 Lines: 65 On 2/19/07, linux-os (Dick Johnson) wrote: > FWIW. A license is NOT a contract in the United States, according to > contract law. A primary requirement of a contract is an agreement. A > contract cannot, therefore, be forced. Licenses, on the other hand, > can be forced upon the user of the licensed material. Wrong. Acceptance through conduct has been integral to contract law in common-law countries since the days of writs in Chancery, and is part of the codification of the difference between contracts "in personam" and "in rem". Allow me to recommend Kevin Teeven's "A History of the Anglo-American Common Law of Contract". It is settled law throughout the Western world that non-exclusive licenses of copyright need not be formalized, or even put in writing. Licenses cannot in any sense be forced on anyone; they are simply a defense against an action for tort, a conditional waiver of the right to sue, and cannot even be introduced as evidence by a plaintiff. > A license is a document that states the conditions under which an > item may be used. A prerequisite of the licensor is that he/she/they > have a legal right to control the thing being licensed. When a licensed > item has its license modified by a party, not the original licensor, > it is quite possible that such attempts to control the item are > invalid (moot). Lawyers like this because it gives them work since > the final resolution of such a action can old be determined by a > court! Wrong again. A copyright license is a term in an otherwise valid written, oral, or implied offer of contract, with certain limitations of scope and certain conditions and covenants of return performance, waiving the right to sue for the statutory tort of copyright infringement. Read Nimmer on Copyright, or follow the links in this paragraph (another self-quotation from two years ago, http://lists.debian.org/debian-legal/2005/01/msg00621.html): Same difference, legally. Non-exclusive license has a longer history in patent cases than in copyright, and copyright cases frequently point to patent cases as precedent. The commonly cited Supreme Court precedent that a non-exclusive patent license is "a mere waiver of the right to sue" is a 1927 case (De Forest Radio Telephone v. United States, http://laws.findlaw.com/us/273/236.html ), which in turn cites Robinson on Patents -- so it was evidently already well established by then, at least with respect to patents. Everex Systems v Cadtrak (aka in re CFLC) 1996, for instance, cites De Forest in concluding that such a license constitutes significant continuing performance (settling, as far as I am concerned, the question about whether GPL release is a "one-shot" act with no continuing performance -- it's not). For an example that all this applies to copyright, see Jacob Maxwell v. Veeck 1997 ( http://laws.findlaw.com/11th/962636opa.html ), which brings in re CFLC over to the copyright arena. Please do not bother to trot out Webster's definition or medieval uses of the word "license", or the theory of unilateral license with regard to trespass and third-party beneficiaries. These are concepts different from "license" as used in the phrase "non-exclusive copyright license", and just happen to be spelled the same. Cheers, - Michael - To unsubscribe from this list: send the line "unsubscribe linux-kernel" in the body of a message to majordomo@vger.kernel.org More majordomo info at http://vger.kernel.org/majordomo-info.html Please read the FAQ at http://www.tux.org/lkml/