On 5/7/05, Batist Paklons <[EMAIL PROTECTED]> wrote: > [Note: IALNAP (I am lawyer, not a programmer), arguing solely in > Belgian/European context, and english is not my native language.]
It's really cool to have an actual lawyer weigh in, even if TINLAIAJ. :-) > On 07/05/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > Again, that's not how it works. In the presence of a valid license > > contract, one is entitled to contract-law standards of the > > reasonableness of one's attempts to cure a breach when notified. The > > "automatic termination" clause is probably unenforceable in most > > jurisdictions; I think (IANAL) few would even read it as authority to > > terminate on inadvertent (non-material) breach, let alone on the > > licensor's idea of breach if the licensee's (reasonable) construction > > makes it not a breach. > > Automatic termination clauses are quite common, and generally held > valid. It is often only what constitutes a breach that can lead to > such termination that is disputed in court. In my opinion that is one > of the few GPL license terms that is quite sound, only the grounds on > which that termination happens seem extremely flakey to me. You're quite right; I didn't really mean "unenforceable", I meant "ineffective as a means of circumventing a court's authority to interpret the contract and set standards of breach and remedy". As in the MySQL case, where the judge decided that the definitional issue was a matter of fair dispute, and thus MySQL could not meet the standard of "likely to prevail on the facts"; and even if MySQL's interpretation was upheld the breach might well have been cured (leaving the contract intact) by Progress's conduct subsequent to notice of breach; and even if it weren't cured, MySQL could show neither the prospect of irreparable harm nor that the balance of harms favored it, given the conduct pledged by Progress. Hence the already pledged conduct would constitute sufficient remedy pending a full trial of fact, even though the only remedy specified in the GPL is termination. What I really should have written is that automatic termination clauses only affect the date from which the license is deemed to have been terminated in the event that a court determines material breach, but don't give the offeror or drafter any additional authority to interpret whether a breach has occurred. From this perspective, an automatic termination clause isn't so much a way of strengthening the licensor's authority to terminate as it is a declaration that the licensee waives any waivable statutory provisions about notice of termination in the event of breach. It might also affect whether a court-ordered remedy at the conclusion of a full trial includes license termination (i. e., an injunction against continued exercise of rights granted by the license) or merely damages for any conduct to date that fell outside the license. This is in contrast to "in the sole judgment of the licensor" language, which as I understand it can only take effect upon notice in most jurisdictions, and amounts to "termination at will" plus a covenant not to terminate without a reasonable belief that one of the termination conditions has been met. Such language (which is not present in the GPL) places the burden upon the licensee to demonstrate, in the event of notice of termination, that the licensor did not have a reasonable basis for belief that there was reason to terminate. Is that how it works in your jurisdiction, more or less? > As to the whole derivative work discussion, my opinion is that a judge > would rather easily decide something isn't a derived work. The linux > kernel, e.g., wouldn't need those notes of Linus to allow use of the > API and so on, on the simple reason that the kernel is designed to do > just that. In Europe at least one has an automatic license to do > everything that is necessary to run a program for the purpose it is > intended to, unless explicitly otherwise agreed to. I believe for the > GPL to rule this out, it has to draft a clause that says: you cannot > link to this program in such and such a way, unless it is also GPL'ed. > In general exceptions to a rule have to be very precise, lest they > become the rule and the rule the exception. Woohoo. Yes, that's how I understand it under US law as well (IANALIAJ), with a couple of asterisks about estoppel and laches. > I am reasoning from a legal background, and I believe that is also wat > a judge would do. It is my general opinion, following Michael, that > large portions of the FSF FAQ are simply wrong. I have written some > more elaborate papers on that topic, albeit discussing intellectual > property in more general terms, focussed on Open Source. See > http://m9923416.kuleuven.be for that (unfortunately, the most > interesting one is written in dutch, and I do not have time to > translate). I suppose that if I profess to be able to read legalese, I ought to be able to tackle Dutch, with a little help from Google and/or Babelfish. :-) > Kind Regards > Batist Cheers, - Michael
