Re: [ROFL] GCC's GPLv3 "Updated License Exception"

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> Effective! Brilliant! LICENSE!

Hey Hyman, stay focused on Alan's "embryo which is derived from the egg
and sperm" comical theory of treating aggregations (with
linking/dependencies between constituents) as GNUish "derived" works.

As for Larry Rosen, he's also fond of making comical claims. My
favorite is his claim that his licenses (AFL/OSL) are not bilateral but
unilateral agreements (contracts).

http://rosenlaw.com/OSL3.0-explained.htm

-----
Unilateral Contracts And Conditions

So OSL 3.0 can be both a license and a contract, but at heart it is a
license just like GPL or any other open source license, phrased in
contract language.

As a legal document, OSL 3.0 is drafted as a unilateral contract in
which the Licensor makes certain promises and accepts certain
obligations. In return, any licensee who accepts and uses the software
must honor certain conditions. In a formal sense, in unilateral
contracts licensees don't make promises, they merely honor conditions,
and so you will find no language in OSL 3.0 to the effect that "licensee
promises" anything at all. For example, the obligation to publish source
code is an obligation of the Licensor, not a licensee. [§ 3] Reciprocity
works indirectly: A licensee's right to distribute Derivative Works is
conditioned upon licensing those Derivative Works under the same OSL 3.0
license, whereupon that licensee becomes a Licensor obligated by her own
promise to publish Source Code. [§§ 1(c), 3]
-----

Analysis:

"So OSL 3.0 can be both a license and a contract, but at heart it is a
license just like GPL or any other open source license, phrased in
contract language."

That's misleading at best.

"Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not an
unlawful invasion of the rights of the owner."
De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, (1927)

"Whether express or implied, a license is a contract 'governed by
ordinary principles of state contract law.'"
McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (Fed. Cir. 1995)

"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08. Under
Wisconsin law, contracts are to be construed as they are written. When
the language is plain and unambiguous, a reviewing court must construe
the contract as it stands. In construing the contract, terms are to be
given their plain and ordinary meaning." (citations omitted).
Kennedy v. Nat'l Juvenile Det. Ass'n, 187 F.3d 690, (7th Cir. 1999)

"Although the United States Copyright Act, 17 U.S.C. §§ 101-1332,
grants exclusive jurisdiction for infringement claims to the federal
courts, those courts construe copyrights as contracts and turn to the
relevant state law to interpret them."
Automation by Design, Inc. v. Raybestos Products Co., 463 F3d 749,
(7th Cir. 2006)

"However, implicit in a nonexclusive license is the promise not to sue
for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677
(9th Cir. 1996), citing De Forest Radio Telephone Co. v. United
States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive license
is, in essence, a mere waiver of the right to sue the licensee for
infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d
555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive
license may be oral or by conduct and a such a license creates a
waiver of the right to sue in copyright, but not the right to sue for
breach of contract)."
Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)

Rosen goes on:

"As a legal document, OSL 3.0 is drafted as a unilateral contract in
which the Licensor makes certain promises and accepts certain
obligations. In return, any licensee who accepts and uses the software
must honor certain conditions. In a formal sense, in unilateral
contracts licensees don't make promises, they merely honor conditions,
and so you will find no language in OSL 3.0 to the effect that
"licensee promises" anything at all. "

That's nonsense!

OSL 3.0:

"Attribution Rights. You must retain, in the Source Code of any
Derivative Works that You create, all copyright, patent, or trademark
notices from the Source Code of the Original Work, as well as any
notices of licensing and any descriptive text identified therein as an
"Attribution Notice." You must cause the Source Code for any
Derivative Works that You create to carry a prominent Attribution
Notice reasonably calculated to inform recipients that You have
modified the Original Work."

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=969224

"Third, James argues that the license was voided when Graham breached
its conditions by nonpayment of royalties and removal of James's
copyright notice. This argument turns--and fails--on the distinction
in contract between a condition and a covenant. Generally, "[i]f the
[licensee's] improper conduct constitutes a breach of a covenant
undertaken by the [licensee] . . . and if such covenant constitutes an
enforcible contractual obligation, then the [licensor] will have a
cause of action for breach of contract," not copyright infringement. 3
Nimmer on Copyright , supra , § 10.15[A], at 10-120. However, "[i]f
the nature of a licensee's violation consists of a failure to satisfy
a condition to the license . . ., it follows that the rights dependant
upon satisfaction of such condition have not been effectively
licensed, and therefore, any use by the licensee is without authority
from the licensor and may therefore, constitute an infringement of
copyright." Id. at 10-121 (citations omitted); see also Fantastic
Fakes, Inc. v. Pickwick Int'l, Inc. , 661 F.2d 479, 483-84 (5th Cir.
1981). A condition has been defined as "any fact or event which
qualifies a duty to perform." Costello Publ'g Co. v. Rotelle , 670
F.2d 1035, 1045 n.15 (D.C. Cir. 1981) (citing Corbin, Conditions in
the Law of Contract , 28 Yale L.J. 739 (1919)).

We think that the payment of royalties and the inclusion of a notice
crediting James's authorship are to be considered covenants, not
conditions. The construction of the licensing agreement is governed by
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150,
153 (2d Cir. 1968). Generally speaking, New York respects a
presumption that terms of a contract are covenants rather than
conditions. See Grand Union Co. v. Cord Meyer Dev. Co. , 761 F.2d 141,
147 (2d Cir. 1985) ("In the absence of more compelling evidence that
the parties intended to create a condition, the negotiation provision
must be construed as a promise or covenant."); Warth v. Greif , 106
N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
than conditions precedent."), aff'd , 193 N.Y. 661 (1908). Graham and
James orally agreed to the licensing agreement and did not clearly
delineate its conditions and covenants. Further, it is important that
James turned over the C version for use before any royalties were
paid, and that the first version of PDSI-004-1 was published with the
proper notice of authorship, because contract obligations that are to
be performed after partial performance by the other party are not
treated as conditions. 22 N.Y. Jur. 2d Contracts § 265 (1996); see
also Jacob Maxwell, Inc. , 110 F.3d at 754 (holding that payment of
royalties and crediting of author were covenants because "[the
composer] expressly granted [the licensee] permission to play the song
before payment was tendered or recognition received"); I.A.E., Inc. ,
74 F.3d at 778 (holding that full payment was not a condition
precedent when the licensee received the copyrighted drawings after
tendering only half the required payment).

Guided by that analysis, together with New York's presumption favoring
covenants over conditions and the district court's clear finding that
a licensing agreement came into existence, we conclude that the notice
and royalty obligations would likely be considered covenants, and
cannot be relied upon by James as conditions. "

Summary:

Q) How come that http://rosenlaw.com/OSL3.0-explained.htm says that
the OSL is drafted as a UNILATERAL (not bilateral) contract (see e.g.
"Bilateral Versus Unilateral Contracts" at
http://www.echeat.com/essay.php?t=30968) at the same time insisting on
EULA-like manifestation of assent to the terms? ("If You distribute or
communicate copies of the Original Work or a Derivative Work, You must
make a reasonable effort under the circumstances to obtain the express
assent of recipients to the terms of this License.")

A) It appears to be the same sort of OSL legal science paradox as the
pretence that a copyright license somehow applies to material objects
such as (see 17 USC 101) "COPIES" (in addition to intangible WORK).
"This Open Software License (the "License") applies to any original
work of authorship (the "Original Work") whose owner (the "Licensor")
has placed the following licensing notice adjacent to the copyright
notice for the Original Work ... proviso that copies of Original Work
or Derivative Works that You distribute or communicate shall be
licensed under this Open Software License".

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)