To the Editor:
Why is the Free Software Foundation given a pass on the issue of contract enforcement under state law on binding legal agreements like the GPL? The consequences are dramatic indeed for the commercial enterprise environment.
When the Free Software Foundation speaks of unilateral permissions or bare license law enforcing the GPL, they are referring to a long line of case law concerning patents that was summarized by the Supreme Court in General Talking Pictures Corp v Western Electric Co, Inc., 305 US 124,125.
The principle involving a "bare license" or "unilateral permission" is that a patentee may condition his own reward of exclusive rights as he chooses. After all, the rights are his alone and he may condition them as he sees fit. The conditions he places must involve only his exclusive rights and not the exclusive "of parties involved and there is no privity requirement. The legality of this principle has never been questioned (i.d. at 125).
A derivative copyright work by the definition of sec. 103 (b) contains exclusive rights for two distinct parties, the authorizing "preexisting material" author retains his rights and the "contributed material" author gains separate, disjoint and exclusive rights to the new material he has contributed. There is no analogous "derivative patent" creation under patent law.
The "pre-existing material" author has the exclusive right to authorize and prepare derivative works of his "pre-existing" work but has no copyrights whatsoever in the "contributing" author's material.
Since the derivative work contains both the "pre-existing material" and the "contributed material" it is obvious that if both sets of "material" have exclusive disjoint rights that two separate, exclusive permissions are required to distribute the derivative work as a whole - the "pre-existing" author's permission and the "modifying" author's permission. Both authors must agree to permit distribution of the derivative work as a whole.
This is where the unilateral permission model fails. A "pre-existing" work licensor cannot place conditions on "contributing" authors' exclusive rights. It's utterly outside the scope of definition of a unilateral permission.
The "pre-existing" author has exclusive rights and no conditions can be placed on his exclusive rights without his agreement to do so. The "contributing" author has exclusive rights and no conditions can be placed on his exclusive rights without his agreement to do so. They are after all, exclusive rights. Only some form of "binding agreement" between both parties can supply both permissions required to distribute a derivative work.
The IBM legal team in their Amended Counterclaims is absolutely aware of this problem. In their Amended Counterclaims they describe the GPL as a "public agreement" cast in "a binding legal form." Ask yourself this question: If IBM describes the GPL as "a binding legal form" - what is being "bound?" The answer is "copyright permissions." That's what the GPL is about. Exclusive copyright permissions.
Unilateral license permissions do not need state enforcement. Unfortunately "binding legal forms" are enforced under state action as there is no recognized federal authority in this area.
How then, do you permit a derivative work to be distributed? This is usually done at the time the "pre-existing" author authorizes the derivative work by way of a "binding legal agreement" of some form with the "contributing" author.
When the GPL asserts:
" 2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:..."
The authorizing "pre-existing" author is attempting to condition the "contributing" author's exclusive rights on the authorizing "pre-existing" author's unilateral grant of rights. This is not possible by definition. Remember "there is no mutual exchange of obligations" in a unilateral grant of permission. ([FSF attorney] Eben Moglen's words?) Only a mutual agreement of both parties in a binding form can secure the exclusive permissions of both parties so as to permit distribution.
It is the fact that copyright law recognizes two disjoint, mutually exclusive copyrights in the same derivative work that frustrates license law as promulgated in General Talking Pictures Corp v Western Electric Co mentioned above. This type of "derivative" creation was never anticipated in the evolution of patent licensing law.
There is an exclusive right for an original author to "prepare a derivative work," but there is no exclusive right to distribute a derivative work. The Copyright Act is absolutely silent concerning the "distribution of derivative works." It's left to contract law to control the distribution of derivative works.
Now things get worse. Unilateral permissions do not require privity. "Binding legal forms" do require privity. It is obvious IBM is attempting to solve the privity problem by describing the GPL as a "public covenant." "Public trusts" do not require privity.
Even if privity were granted, things get worse yet. The GPL purports to restrict the exclusive rights of the "pre-existing" owner(s) in a derivative work from authorizing a new derivative work by "bargaining for permissions" from new "contributing" authors in a continuous sequence of new derivative works (ad infinitum). Remember the phrase "You must cause any work that you distribute...to be licensed" in the GPL sec 2(b)?
The interpretation of "binding legal forms" is left to state action for enforcement. So this "binding legal form" is clearly an attempt to create a "new right against the world" concerning copyrights. The FSF calls this new right "copyleft." The attempt to create a "new right against the world" enforced under state action because of the "binding legal form" triggers preemption by sec. 301. This legal principle of preemption is clearly described in ProCD Inc v Zeidenberg, 86 F.3d 1447 (7th Cir.).
When SCO's attorney Mark Heise said copyright law "preempted" the GPL and only allowed "one copy" he was being somewhat vague. He wasn't referring to the "number of copies," he was referring to the "number of successors." SCO is indeed correct that the GPL is invalid.
Promissory estoppal will keep everyone from suing each other short-term but Linux cannot be distributed under any kind of "viral license" for future development. All those enterprise users will be stuck with the version of Linux they are now running with no way to repair or upgrade because the license is fatally flawed. "Copyleft is not possible."
A quick check by a competent attorney with the citations above will quickly confirm the accuracy of these conclusions.
[retired physicist, associate member of the FSF]
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