On Wed, 2 Feb 2000, Andreas Pour wrote:
> Lynn Winebarger wrote:
>
> I don't see how they are enforceable. The copyright holder, A, has said C
> can do certain
> things, B can't change what A has permitted C to do. But in the event this
> is not clear
> enough, XFree code specifically says you can sublicense XFree code, but only
> if you
> include the XFree license. If that were to mean that B can change the
> license however B
> wants, what would be the point of forcing B to include the XFree license?
> This important
> ir not critical "condition" -- in fact about the only condition -- to
> sublicensing is not
> going to be read to mean nothing by any fair-minded reader, but your reading
> precisely
> makes it mean nothing.
>
They may be enforceable to the extent that A has told B they are
enforceable (by allowing sublicensing without limitation). Unless you
have case law references, it's fairly useless to debate whether or not
it's enforceable. There are valid arguments both ways (when it comes to
unmodified works).
> Right, but the "right" to "sublicense" is subject to the obligation to
> include the X
> Copyright and the X license in the copy B distributes. Again, if the License
> means
> nothing, and in fact C cannot "deal in the Software without limitation" (as
> the X license
> provides), what is the point in including the license in the copy that's
> distributed?
> Please explain that to me.
The purpose is to indicate that party A gives you permission, not to
say that every party with an interest has given you permission. You'll
notice the statement starts with "Permission is hereby granted" not "A
license is hereby granted".
> I don't see where it does. The fact that X license does not explicitly
> prohibit changing
> the license does not imply a right to change it. The fact that the X license
> affirmatively requires copies of the code to include the license is more than
> enough.
>
It explicitly allows sublicensing. If you can't understand this point,
then there's not much point in continuing.
> > Here's an example of how such a sublicense might appear:
> > --------------------
> > You may not copy, modify, or distribute this software.
> > XYZ Software Co.
> > Copyright (C) 1996 X Consortium
> >
> > Permission is hereby granted, free of charge, to any person obtaining a
> > copy of this software and associated documentation files (the "Software"),
> > to deal in the Software without restriction, including without limitation
> > the rights to use, copy,
> > modify, merge, publish, distribute, sublicense, and/or sell copies of the
> > Software, and to permit persons to whom the Software is furnished to do
> > so, subject to the following conditions:
> >
> > The above copyright notice and this permission notice shall be included in
> > all copies or substantial portions of the Software.
> >
> > THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
> > IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
> > FITNESS FOR A PARTICULAR
> > PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE X CONSORTIUM BE LIABLE
> > FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF
> > CONTRACT, TORT OR OTHERWISE,
> > ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR
> > OTHER DEALINGS IN THE SOFTWARE.
> >
> > Except as contained in this notice, the name of the X Consortium shall not
> > be used in advertising or otherwise to promote the sale, use or other
> > dealings in this Software without prior written authorization from the X
> > Consortium.
> >
> > X Window System is a trademark of X Consortium, Inc.
> > -------------
> >
> > There is no contradiction. X grants you their permission, XYZ denies
> > you theirs, as is their right under the X license.
>
> I don't agree. Where does the X license specifically grant the right to
> alter the
> license? It doesn't --you "imply" this rather powerful right to sublicense
> under any
> terms you want from the mere absence of an explicit prohibition against doing
> that, all
> the time ignoring the purpose of the requirement that the sublicensor include
> the original
You must have missed it:
Permission is hereby granted, free of charge, to any person obtaining a
^^^^^^^^^^^^^^^^^^^^^^^^^^^^
copy of this software and associated documentation files (the "Software"),
to deal in the Software without restriction, including without limitation
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
the rights to use, copy,
^^^^^^^^^^^^^
modify, merge, publish, distribute, sublicense, and/or sell copies of the
^^^^^^^^^^
Software, and to permit persons to whom the Software is furnished to do
so, subject to the following conditions:
I have not implied a thing: it's right there.
>
> license. Note, incidentally, that the X license does not require the
> sublicensor to
> include the dislcaimer of warranty, only the License. Why is this so?
I would guess they believe any warranty liablity will be restricted to
the entity distributing the software.
>
> The point can be stated another way. B has no right to prevent me from
> copying the X
> code. B is not the copyright holder, A is. A tells B, you can copy this
> code and
> distribute it, but only if you put my license on it. B does so, but adds some
> restrictions. C gets the code from B. C sees where A, the copyright holder,
> the only
> person that can prohibit copying, has said, anybody, including C, can copy
> the code. So
> why would C care about B's restriction?
>
Because A has given B the right to add such restrictions.
> Do you really think that if C copied the code, despite B's notice that C
> can't, then B can
>
> sue C for copyright violation? Do you really think that? B can't sue for
> copyright
> violation b/c B has no copyright, right? That only leaves B to sue for a
> license
> violation, but a copyright license presupposes a copyright, so that won't do
> B any good
> either, as B has no copyright. So on what basis could B enforce this "added
> restriction"? (Of course, if B can't enforce it, it is not a restriction,
> it's wishful
> thinking).
Not for copyright infringement, no. Why do you think I've qualified my
responses? I can't say, conclusively, that it'll be one way or another
if/when an actual court case arises.
> As I have mentioned before, the reason the right to sublicense is explicitly
> granted is
> b/c of the contract doctrine of "privity". In order for a contract/license
> to be
> effective, there has to be a direct connection between the licensor and the
> licensee (this
This is not a reason for the sublicensing clause. It is a reason for
the "to any person obtaining a copy of this software and associated
documentation files (the "Software")" clause.
> You cannot really license the derivative work how you want -- but you can
> copyright your
> changes and license those however you want. Then, to distribute the combined
> work,
> someone must comply with both licenses. However, the XFree code remains
> under its own
> license.
>
I didn't say how you want, I said "how you want, subject to the X
licenses (minor) restrictions." The only restriction is that you have to
print the author's notice that he grants these permissions.
> holder has said can be copied *by anyone* *without limitation*. Lynn, you
> have managed to
>
> turn copyright law on its head in a few clicks of the keyboard. I, for one,
> don't buy it.
>
No I have not. The copyright holder has not said that the copy you
receive can be copied without limitation. It says the copyright holder
grants you these permissions, as well as having granted others permissions
to attach terms en route to you.
> Yes, I do note that, read it again: "I can only [distribute the collection
> of works] if I
>
> have permission of the copyright holders of all works".
>
What you don't note that the license of the whole may be dictated by
the license of a part.
Lynn
