> > 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?
More or less: giving notice is an imperative that only in very few cases is deemed unnecessary. This is in the rather obvious case when notice has no use any more. Waiving the right of notice has to be drafted in a very precise clause without any ambiguity. This clause is certainly not present in the GPL. Thus should a licensor seek a cure for a breach, he still should give notice, even if the termination is automatic. This to give the licensee reasonable time to cure the breach himself (or to start doing his legal research ;) ). The "in the sole judgment of the licensor" language, is to my opinion irrelevant. Even in the case of automatic termination there is still some action required on the side of the licensor, action which also needs his judgement. Terminating without reasonable belief that a breach occurred amounts to abuse of law and reckless litigation, irregardless of any contract clause (this on the principle of good faith). The clause isn't precise enough either to move the burden of proof, but perchance it could be used in context to interpret the will of the parties. But that context better be more precise. This however doesn't really change a lot about our discussion about the GPL. It is my belief that the GPL is horribly drafted. One should either choose the simplistic beauty of a BSD style license, or choose a carefully drafted legalese text, such as the IBM Public License. I grew up in a french culture, which chooses for the former, on the belief that it is impossible to predict everything, so it is better to leave out the details and set forth only general principles. The GPL just fails short on both sides. Another concern is that subsequent versions of the GPL cannot improve the language that easily, in spite of the "any later version" clause. I cannot believe that any jurisdiction would reasonably allow a "I offer you this on these conditions, but a third party may change these conditions at will" clause. There is simply no consensus on those future conditions. It is effectively a license change, thus a change of contract, with every possible consequence of notice and so on. My apologies for digressing. In any case, judges are most often very reasonable people, who more often than not understand that the law should follow established practice and not the other way around. Kind regards Batist Paklons
