diff --git a/comprehensive-gpl-guide.tex b/comprehensive-gpl-guide.tex index 69a40ec..fae95d7 100644 --- a/comprehensive-gpl-guide.tex +++ b/comprehensive-gpl-guide.tex @@ -100,7 +100,8 @@ and Guide {\parindent 0in \begin{tabbing} -Copyright \= \copyright{} 2003--2005, 2008, 2014--2015 \hspace{1.mm} \= \kill +Copyright \= \copyright{} 2003--2005, 2008, 2014--2015, 2018 \hspace{1.mm} \= \kill +Copyright \> \copyright{} 2018 \> Chestek Legal. \\ Copyright \> \copyright{} 2003--2005, 2008, 2014--2015 \> Bradley M. Kuhn. \\ Copyright \> \copyright{} 2014--2015 \> Anthony K. Sebro, Jr. \\ Copyright \= \copyright{} 2014 \> Denver Gingerich. \\ diff --git a/gpl-lgpl.tex b/gpl-lgpl.tex index 8241363..5741321 100644 --- a/gpl-lgpl.tex +++ b/gpl-lgpl.tex @@ -2320,6 +2320,117 @@ rights\footnote{While nearly all attorneys and copyleft theorists are in Jaeger and almost everyone else in the copyleft community for nearly a decade, regard an almost moot and wholly esoteric legal detail.}. +\section{GPLv2 Irrevocability} + +There are two legal theories why a contributor cannot terminate their license +grant. First is an argument that the text of the GPL prevents it; second is +that a contributor would be estopped from succeeding on an infringement claim +for continued use of the code even if it wasn't removed. + +\subsection{The text of the GPLv2} + +The GPLv2 have several provisions that, when taken together, can be construed +as an irrevocable license from each contributor. First, the GPLv2 says ``by +\emph{modifying} or distributing the Program (or any work based on the Program), you +indicate your acceptance of this License to do so, and all its terms and +conditions for copying, distributing or modifying the Program or works based +on it'' (GPLv2\S5, emphasis added). A contributor by definition is modifying +the code and therefore has agreed to all the terms in the GPLv2, which +includes the web of mechanisms in the GPLv2 that ensure the code can be used +by all. + +More specifically, the downstream license grant says ``the recipient +automatically receives a license from the original licensor to copy, +distribute or modify the Program subject to these terms and conditions.'' +(GPLv2\S6). So in this step, the contributor has granted a license to the +downstream, on the condition that the downstream complies with the license +terms. + +That license granted to downstream is irrevocable, again provided that the +downstream user complies with the license terms: ``[P]arties who have +received copies, or rights, from you under this License will not have their +licenses terminated so long as such parties remain in full compliance'' +(GPLv2\S4). + +Thus, anyone downstream of the contributor (which is anyone using the +contributor's code), has an irrevocable license from the contributor. A +contributor may claim to revoke their grant, and subsequently sue for +copyright infringement, but a court would likely find the revocation was +ineffective and the downstream user had a valid license defense to a claim of +infringement. + +Nevertheless, for purposes of argument, we will assume that for some +reason the GPLv2 is not enforceable against the contributor\footnote{For + example, the argument has been made that there may be a failure of + consideration on the part of the contributor. While \textit{Jacobsen + v. Katzer}, 535 F.3d 1373 (Fed. Cir. 2008) is accepted as holding that + there is consideration received by the contributor in a FOSS license, the + posture of the case was one where the contributor advocated for the theory, + not against it. The author is not aware of any other decisions that have analyzed + the question in any depth, so it perhaps could be challenged in the right + factual situation.}, or that the irrevocable license can be +revoked\footnote{A contract without a definable duration can be terminated on + reasonable notice. \textit{Great W. Distillery Prod. v. John A. Wathen Distillery + Co.}, 10 Cal. 2d 442, 447, 74 P.2d 745, 747 (1937). The term nevertheless + can be a term of indefinite length where its continuing effect is tied to + the conduct of the parties. \emph{Id}.}. In that case, the application of +promissory estoppel will likely mean that the contributor still cannot +enforce their copyright against downstream users. + +\subsection{Promissory estoppel} + +``Promissory estoppel'' is a legal theory that says, under some +circumstances, a promise is enforceable against the promisee even after the +promisee tries to renege on the promise. The test for how and when promissory +estoppel applies differs from state to state, but generally where there is a +``promise which the promisor should reasonably expect to induce action or +forbearance on the part of the promisee or a third person and which does +induce such action or forbearance is binding if injustice can be avoided only +by enforcement of the promise.''\footnote{\textit{Kajima/Ray Wilson v. Los Angeles +Cty. Metro. Transp. Auth.}, 23 Cal. 4th 305, 310, 1 P.3d 63, 66 (2000), \emph{citing} +Restatement (Second) of Contracts \S 90(1) (1979).} Breaking it down, it is: +\begin{enumerate} +\item where there is a clear and definite promise; +\item where the promisor has a reasonable expectation that the offer will + induce action or forbearance on the part of the promisee; + +\item which does induce actual and reasonable action or forbearance by the promisee; and + +\item which causes a detriment which can only be avoided by the enforcement + of the promise. +\end{enumerate} + +In this case, the promisor is the contributor. This should be an easy +standard to meet in any widely used software. +\begin{enumerate} +\item The promise is contained in the GPL, which is a promise that one can + continue to use the licensed software as long as the terms of the license + are met. + + +\item A contributor knows that there is a broad user base and users consume + the software relying on the grant in the GPL as assuring their continued + ability to use the software (one might even say it is the \textit{sine qua + non} of the intent of the GPL). + +\item Users do, in fact, rely on the promises in the GPL, as they ingest the software + and base their businesses on their continued ability to use the software. + +\item Whether the user will suffer detriment is case-specific, but using + Linux, a software program that is often fundamental to the operation of a + business, as an example, the loss of its use would have a significantly + detrimental, perhaps even fatal, effect on the continued operation of the + business. + +\end{enumerate} + +\subsection{Conclusion} + +Whether as a matter of a straightforward contractual obligation, or as a +matter of promissory estoppel, a contributor's attempt to revoke a copyright +license grant and then enforce their copyright against a user is highly +unlikely to succeed. + \section{GPLv2~\S7: ``Give Software Liberty or Give It Death!''} \label{GPLv2s7}