Can someone please tl;dr why this was a requirement in the first place?
I trust the FSF and it seems like a good idea, but I'm not sure why.
I trust the FSF and it seems like a good idea, but I'm not sure why.
I wrote the blanket assignment back in 1989 or 1990. I still consider this a legitimate risk.
As a first step they had to show that Hellwig had made changes to code that VMWare uses that can be copyrighted. Especially difficult since every line in Linux is modified by a few different people. They failed at that and that ended the lawsuit if I remember correctly.
It turns out this didn't happen. People who want to use free software and to stay legal just... honored the license. People who didn't want to do so used other software. And the only people who actually were breaking the license turned out to be tiny fly-by-night operations in parts of the world where copyright litigation wasn't a very useful tool anyway.
But the FSF has had a policy of favoring compliance and forgiveness over punishment, and they've aggressively avoided litigation-- instead preferring to negotiate for compliance with goodwill loss as the threat-- to the point of contributing to some splits in free software. E.g. this is a point of disagreement between SFC and FSF.
- https://sfconservancy.org/copyleft-compliance/principles.htm...
IIRC FSF has only sued once, conservancy has like 100x the rate of lawsuits per years-existed. :P
Also, what if a company decides to ignore the GPL and pay up? The courts and law understand monetary damages. The FSF runs the risk of the judge deciding that the code is already out there, and the value the code is $X: therefore the infringer should reasonably buy a license for $X and doesn't have to give source code back. This would violate the spirit of the GPL, but would fit the letter of the law.
But the fact that the FSF hasn't in fact litigated isn't by itself a reason that preserving the clear ability to litigate isn't useful. We don't know how many cases an infringer was made more likely to come into compliance by the fact that work had clear ownership, particularly because the FSF has avoided litigation when they had other avenues open.
It is easier if they own all the code, but it isn't required.
It's not that simple. For joint works any single author can grant rights to the entire work. Do you know what the caselaw is regarding joint works as applied to typical FOSS projects? I don't. But I suspect it's less than crystal clear (see, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2999185) and therefore creates significant risk when attempting enforcement. Litigation is costly, and a wrinkle like this could potentially be exploited by an infringer to drag out an enforcement case for many years.
That doesn't sound right - why would anyone ever contribute to a joint work if the other author can sell it to a publisher on their own? Wouldn't they then just take all the royalties and leave you with nothing?
2) A joint author still must share profits. See previous link and also https://repository.law.umich.edu/cgi/viewcontent.cgi?article... (But can a joint author claim waste--loss of commercial profit--if another licenses as FOSS?)
3) Joint authors in the business of commercializing their works (as opposed to accidental joint authors) would usually have a contract between themselves controlling licensing.
4) If it doesn't sound right, that's exactly my point. Copyright law is more complex than discussed on internet forums. Just because something doesn't make sense to a non-practitioner doesn't mean it's completely senseless to a practitioner. Corporate lawyers are often much more risk averse than law professors counseling FOSS advocacy organizations. But as mentioned by the previous SSRN paper I linked[1], joint authorship is typically considered to be detrimental and even fatal to the objectives of many FOSS licenses, which usually assume a model of distinct, serial contributions creating derivative (not joint) works.
[1] Chestek, Pamela S, A Theory of Joint Authorship for Free and Open Source Software Projects (July 2, 2017). Available at SSRN: https://ssrn.com/abstract=2999185 or http://dx.doi.org/10.2139/ssrn.2999185
To be clear, I'm not trying to say that all or even any FOSS works are or should be considered joint works. Just that the possibility could be a concern for lawyers contemplating enforcement. Certainly in other areas where you often see informal cooperation in the creation of collaborative works, such as in music, the issue absolutely does come back to bite people.
I mean, it's true that you could still win a case having to win those arguments, but it's harder.
Defense in depth isn't just a computer security technique. Any lawyer will tell you that the easiest argument to win is one that can't be brought in the first place.
Also statutory damages for willful infringement are very high As much as 150k per work which again still doesn't grant you a license.
IANAL but I don't think it works that way. They could pay up $X for damages and even get their license revoked. They still don't buy a license to perpetually violate the GPL.
There isn't much case law here. It will probably end up in appeals for years. In the end it doesn't really benefit anyone to take their chances in court.
You basically say that the court can order the copyright holders to offer an exclusive proprietary license to the violators for a "reasonable" price.
Isn't there any case law for license violations in general? For the purpose of this discussion this is just yet an other license violation, not necessarily tied to the GPL.
The main one is it is easier to change the license if you want to.
IANAL so I'll probably mess up these next two, which I believe are more theoretical than anything in regard to software. At least in the US.
It is possible for a copyright holder to revoke a license. so there could be an important contribution living in the code base and then one day the author could revoke the license and they would have to remove the code, and somehow prove their replacement was not infringing.
There is a concept of Joint Authorship. Where it could be possible for a contributor to claim joint copyright over the entire project, and then release it on their own under any license they want. I could be wrong, but I believe it has happened where book editors that didn't have an air tight contract, were able to claim joint copyright over a book they edited, and release their own versions with a different publisher.
I don't believe that is true. A license is a contract; there are only two ways to revoke a contract: if the contract is illegal or if the contract provides terms to let you revoke it. If you publish software under the GPL, there is no way to revoke the license.
You could stop supporting the contribution in the code base and release alternate versions under different licenses, but the versions in the code base under the GPL remain available under the original terms.
GPLv2 omits such language, so to make it irrevocable you are going to want to find consideration. You can probably whack it a few times with your promissory estoppel stick hard enough to get some consideration to bleed out of it.
That's probably good enough to get irrevocability.