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Re: Shoplifting, concealment, liability presumption

From: Alexander Terekhov
Subject: Re: Shoplifting, concealment, liability presumption
Date: Tue, 04 May 2010 16:08:39 -0000

RJack wrote:
> Hyman Rosen wrote:
> > On 3/10/2010 2:17 PM, Alexander Terekhov wrote:
> >> here's typical outline notes regarding contractual (K) performance
> >
> > The GPL and other such licenses are licenses, not contracts.
> -- By authority of Pamela Jones and David Kastrup --

The 'authority' actually comes from arch legal GNU beagle Eben a self
proclaimed "one of the world's leading experts on copyright law as
applied to software". LOL.

"A licence or a contract?

I have been involved in an argument on a mailing list with regards to
the legal nature of copyleft licences such as the GPL. This is a bit of
a pet peeve of mine (and talking to other lawyers, it seems like I’m not
alone in this). This is the fact that in Free Software circles there is
a mantra stating that “the GPL is a license, not a contract”. An example
of this can be found here. I must admit that this artificial distinction
drives me up the wall. As far as I can see, Eben Moglen is the one
person who came up with this distinction. He explains it like this:

“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 problem with this interpretation is that despite protestations to
the contrary about the practice being an “artifact of twentieth-century
practice”, a licence is still a contract if it fulfils contract
formation requirements. The above quote rests on a specific view of
contract formation. Contracts require offer, acceptance and in some
places consideration (reciprocity). The error in Moglen’s explanation is
that he is assuming that a contract can only be formed with
consideration, which is not the case in a large number of countries of
the world that have civil or mixed legal systems (Scotland for example).
Contracts in those countries do not require a promise of payment, as
specified by Moglen, which then allows unilateral promises and licences.
To assume that American contract law applies everywhere seems a bit odd.

Why would anyone want to make a distinction between a contract and a
licence? There are some useful procedural reasons to identify a
copyright licence in some jurisdictions. For example, there may be
different legal effects if a contract is a licence, or sale of goods, or
sale of services. But those three are still contracts!

As far as I can tell, Moglen declares that he has a problem with the
global variability of contract law. He says in an interview with Kathy
Bowrey (thanks to David Berry for the link): “This is the very reason
why I have resisted contractualisation completely because contract law
is totally non uniform around the world.” With all due respect to Prof.
Moglen, it is not up to him to decide if contract law applies to a
licence, it is up to the courts. I find a part of the interview very
telling. Here Moglen says:

“So all that I do is bring an infringement action. It is the
defendant’?s responsibility to prove license and the only credible
license for the defendant to plead is my license, because code is not
otherwise available except under that license.”

That is a dangerous position! Firstly, how do you prove that the user is
under a licence other than by contractual law principles? Secondly, this
argument would seem to suggest that any user of copyright works can be
taken to court, and only then they can prove that they actually had a
licence to use the work. Imagine the same paragraph above being said by
Bill Gates and not by Eben Moglen, and you will get why this is such a
dangerous position! As a colleague pointed out to me, according to this
view, all use is a priori infringement until proven otherwise. "


P.S. "I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(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.)

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