7 ms·

Nit: Licenses are not by definition revocable. They can be revocable or irrevocable.

dragonwriter 6y ago
> Nit: Licenses are not by definition revocable. They can be revocable or irrevocable. Not: Gratuitous (not contract) licenses are, by strong legal precedent, revocable by notice at will by the licensor. The content and context of the license (including the statement that it is irrevocable) may impact the effect given to revocation due to other legal principles, particularly promissory estoppel, but those are separate from revocability.
- ajarmst 6y ago
  I don't have a horse in this race, but I've become curious. Can you identify the cases and jurisdictions that provide this strong precedent? I.e. who has successfully cancelled a permanent irrevocable license, even having provided it gratuitously? If true, your claim would seem to make some of the principles open source licenses are based on untenable. I would think I would already be aware of that.
  - andi999 6y ago
    I would also like to hear that. It sounds almost like if Linus wanted to cash in, he could just revoke the license? I doubt that.
    - webmaven 6y ago
      > I would also like to hear that. It sounds almost like if Linus wanted to cash in, he could just revoke the license? I doubt that. That would be the implication only if Linus was the sole copyright owner. As it is, no one is asked to assign their copyright when contributing code to the Linux kernel, and the amount of code still remaining in the kernel that Linus has personally written himself is a rather small portion. So if Linus were to "take his ball and go home" as it were, the affected code could be replaced. That said, the multiplicity of contributors that retain their copyright to their contributions is also why relicensing the kernel to GPL 3 is largely a non-starter, even if Linus weren't opposed to it (and he is).
  - ajarmst 6y ago
    Replying to myself after a very brief search (IANAL, so responsible readers should be skeptical). This seems to have been a common concern around the turn of the century (sufficient to prompt 'abundance of caution' warnings to require copyright assignment in GPL'd projects from none less than Eben Moglen), it seems to no longer to be thought likely to succeed in litigation. Bruce Perens seems to feel that Jacobsen v, Katzer is the dispositive precedent in US. Useful layperson's summary at https://www.zdnet.com/article/what-happens-if-you-try-to-take-your-code-out-of-linux/ https://www.zdnet.com/article/what-happens-if-you-try-to-tak...
    - tzs 6y ago
      The question of whether or not you can revoke an open source license would go away if the people writing the licenses would say in their licenses that they are irrevocable or perpetual or in perpetuity. I have not been able to figure out why so few major ones do. Of the OSI approved licenses, I think the only ones that say so are AFL-3.0, AGPL-3.0, APL-1.0, APSL-2.0, Apache-2.0, CATOSL-1.1, ECL-2.0, EUDatagrid, EUPL-1.1, GPL-3.0, LiLiQ-P-1.1, LiLiQ-R-1.1, LiLiQ-Rplus-1.1, MulanPSL-2.0, NPOSL-3.0, OCLC-2.0, OSL-1.0, OSL-2.1, OSL-3.0, RPSL-1.0, SimPL-2.0, Simple-2.0, UCL-1.0, osl-1.0, osl-2.1, and the Unlicense. Only AGPL, GPLv3, and Apache 2 from that list are really widely used. Much less talked about than whether or not you can revoke a license, but probably as important for most open source licenses, is what happens if rather than trying to revoke the license you try to stop issuing new licenses? Take GPLv2. Suppose I license some code I own to Alice under GPLv2. Later Alice gives a copy to Bob. Where does Bob's license come from? GPLv2 says, "Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions". GPLv3 has similar language. If I say that I'm no longer going to issue licenses, and sue Bob for copyright infringement, what will his defense be? He could argue that my license to Alice obligates me to issue a license to him. That falls under an area of law called the law of third party beneficiaries. Commonly you run into that in situations such as life insurance. I enter into a contract with a life insurance company to benefit specific third parties named in the contract, and that gives them some rights to sue to enforce the contract even though they are not a party to it. I haven't seen much analysis of how the law of third party beneficiaries would work when applied to an open source license, but I'm not optimistic it would do much. Third party beneficiary rights tend to be weak at best if the third party is not a specific entity that the contract was made specifically to benefit. Someone downstream from Alice might be too vague to be a third party beneficiary, and it probably gets worse the farther downstream they are. How about Alice? She could probably intervene to force me to honor my license to her and issue Bob a license. That's still going to put a damper on downstream redistribution. If you want to use the code without much legal worry, you'd need to make sure you got it from someone who would be willing to intervene if you got sued by me. As with the revocation question, this too could be avoided be better drafting of the licenses. It's not a problem for Apache 2, for example, because the Apache 2 license grant is "a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form". The key in there is "sublicense". When Alice gives Bob a copy, Bob can get his license directly from Alice via her use of the sublicensing right I gave her. I think that the only widely used open source licenses that do this are Apache 2 and MIT. The GPL family specifically says that you cannot sublicense. I think they did this because they did not want people using sublicensing to give out licenses that did not include all of the GPL rights. Better would have been to allow sublicensing but to explicitly say that when you sublicense you must include all the rights that were in the license you received from upstream.
- throwhypothetic 6y ago
  If a project is licensed under the AGPL, does that mean contributions to it are also licensed under the AGPL? Hypothetically if all the contributions were public domain code included in an AGPL project, then wouldn't the maintainer be within their rights to include those contributions in a closed-source version of the project?
  - ajarmst 6y ago
    You cannot change the license on code that is copyrighted by another party, unless that other party has already licensed you to do so (e.g a release under version x of some license may permit licensing under the terms of later versions.). The whole point of open source licensing is to prevent future releases from being under more restrictive licenses. Copyright holders always have the option to change their own licensing, but they do not have such freedom if their code is a derivative work, especially if their access to the other work was through an open source license.
    - throwhypothetic 6y ago
      That much I understand, but what's the default license if the contributors didn't specify a license with their contributions? Is it implied that their contribution is licensed according to the full project's license? Much of the discussion is assuming that because the project was AGPL, then the various contributions were AGPL as well. Whether or not that's the case is my question.
      - ajarmst 6y ago
        IANAL, but my understanding is that if their contribution is a derivative work (as most would clearly be), they would be subject to the same license restrictions that restricted their access to the original project. I.e. they had no permission to create the derivative work, and thus no right to release it under any license. If the contribution isn't a derivative work, then the project shouldn't be accepting it without a copyright assignment or license.
- kemitchell 6y ago
  It's perfectly possible to take in software project contributions under license, rather than assignment, without fear of losing rights at the drop of a hat. Apache does it. Eclipse does it. Nearly all the major companies stewarding open projects do it. I'm not aware of any substantive distinction in the words "revocation", "termination", or the like, except with specific reference to 203. The question is whether you can show license if they plead infringement. In practice, they'll often plead breach, too. Bare copyright licenses are largely theoretical here. If the terms of a unilateral grant include assurance of irrevocability, thats a strong fact for reliance and estoppel. If there's any question what the terms meant, it will be resolved by rules of contract construction, because it's not a public statute, and contract rules are the rules we have. There is a default rule, when the terms are silent, but it's just a default.
- michaelmrose 6y ago
  Can you please cite some examples of copyright licenses which were revoked unilaterally at will and in what circumstances. Note not legal theories to the effect that this is so, actual cases of revocation.
- user5994461 6y ago
  >>> Not: Gratuitous (not contract) licenses are... Note that "license" is a US concept that does not exist in Europe. Licenses here are systematically interpreted as full fledged contracts and fall under contract law. Have to point out how this seemingly minor point in parenthesis really highlights how the comment is wrong and misplaced for a good chunk of the world. P.S. Not trying to criticize here, just pointing out that copyright is vast and complex.
  - dragonwriter 6y ago
    > Note that "license" is a US concept Well, English, long predating the US. > that does not exist in Europe. Well, it exists in the UK and, I'm fairly certain, Ireland. > Licenses here are systematically interpreted as full fledged contracts and fall under contract law. Do contracts in your jurisdictions not require mutual consideration or are licenses without mutual consideration facially defective? And is this gratuitous licenses in general don't exist or just in copyright?
    - user5994461 6y ago
      Long story short. US contracts (common law) require consideration (both parties give something to the other). License couldn't be contracts because they give rights without getting anything in return. That's why it's a separate concept. European contracts (civil law) don't require consideration. Thus there's no need for a separate concept of license. (Allow me to skip the Europe vs UK debate for brevity ^^) You can have a read at this article on a recent GPL court case in France, see section "French Law" that explains how some of the major differences https://thehftguy.com/2020/09/15/french-judge-rules-gpl-license-to-be-inapplicable-in-french-copyright-court/ https://thehftguy.com/2020/09/15/french-judge-rules-gpl-lice... Guess I should write a dedicated article on licenses vs contracts so I can just point people to it. Is it something you would be interested in?
      - kemitchell 6y ago
        In practice, we don't think much about failures of consideration in the US, at least outside of law school. Even without any stated exchange in the terms of a license, courts have obligingly found one for the licensor-plaintiff in surrounding circumstances. See Jacobsen v Katzer way back when, Artifex v Hancom more recently. We do have rules for unilateral contracts and induced reliance, but they don't seem to come up much.

> Nit: Licenses are not by definition revocable. They can be revocable or irrevocable. Not: Gratuitous (not contract) licenses are, by strong legal precedent, revocable by notice at will by the licensor. The content and context of the license (including the statement that it is irrevocable) may impact the effect given to revocation due to other legal principles, particularly promissory estoppel, but those are separate from revocability.

ajarmst 6y ago
I don't have a horse in this race, but I've become curious. Can you identify the cases and jurisdictions that provide this strong precedent? I.e. who has successfully cancelled a permanent irrevocable license, even having provided it gratuitously? If true, your claim would seem to make some of the principles open source licenses are based on untenable. I would think I would already be aware of that.
- andi999 6y ago
  I would also like to hear that. It sounds almost like if Linus wanted to cash in, he could just revoke the license? I doubt that.
  - webmaven 6y ago
    > I would also like to hear that. It sounds almost like if Linus wanted to cash in, he could just revoke the license? I doubt that. That would be the implication only if Linus was the sole copyright owner. As it is, no one is asked to assign their copyright when contributing code to the Linux kernel, and the amount of code still remaining in the kernel that Linus has personally written himself is a rather small portion. So if Linus were to "take his ball and go home" as it were, the affected code could be replaced. That said, the multiplicity of contributors that retain their copyright to their contributions is also why relicensing the kernel to GPL 3 is largely a non-starter, even if Linus weren't opposed to it (and he is).
- ajarmst 6y ago
  Replying to myself after a very brief search (IANAL, so responsible readers should be skeptical). This seems to have been a common concern around the turn of the century (sufficient to prompt 'abundance of caution' warnings to require copyright assignment in GPL'd projects from none less than Eben Moglen), it seems to no longer to be thought likely to succeed in litigation. Bruce Perens seems to feel that Jacobsen v, Katzer is the dispositive precedent in US. Useful layperson's summary at https://www.zdnet.com/article/what-happens-if-you-try-to-take-your-code-out-of-linux/ https://www.zdnet.com/article/what-happens-if-you-try-to-tak...
  - tzs 6y ago
    The question of whether or not you can revoke an open source license would go away if the people writing the licenses would say in their licenses that they are irrevocable or perpetual or in perpetuity. I have not been able to figure out why so few major ones do. Of the OSI approved licenses, I think the only ones that say so are AFL-3.0, AGPL-3.0, APL-1.0, APSL-2.0, Apache-2.0, CATOSL-1.1, ECL-2.0, EUDatagrid, EUPL-1.1, GPL-3.0, LiLiQ-P-1.1, LiLiQ-R-1.1, LiLiQ-Rplus-1.1, MulanPSL-2.0, NPOSL-3.0, OCLC-2.0, OSL-1.0, OSL-2.1, OSL-3.0, RPSL-1.0, SimPL-2.0, Simple-2.0, UCL-1.0, osl-1.0, osl-2.1, and the Unlicense. Only AGPL, GPLv3, and Apache 2 from that list are really widely used. Much less talked about than whether or not you can revoke a license, but probably as important for most open source licenses, is what happens if rather than trying to revoke the license you try to stop issuing new licenses? Take GPLv2. Suppose I license some code I own to Alice under GPLv2. Later Alice gives a copy to Bob. Where does Bob's license come from? GPLv2 says, "Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions". GPLv3 has similar language. If I say that I'm no longer going to issue licenses, and sue Bob for copyright infringement, what will his defense be? He could argue that my license to Alice obligates me to issue a license to him. That falls under an area of law called the law of third party beneficiaries. Commonly you run into that in situations such as life insurance. I enter into a contract with a life insurance company to benefit specific third parties named in the contract, and that gives them some rights to sue to enforce the contract even though they are not a party to it. I haven't seen much analysis of how the law of third party beneficiaries would work when applied to an open source license, but I'm not optimistic it would do much. Third party beneficiary rights tend to be weak at best if the third party is not a specific entity that the contract was made specifically to benefit. Someone downstream from Alice might be too vague to be a third party beneficiary, and it probably gets worse the farther downstream they are. How about Alice? She could probably intervene to force me to honor my license to her and issue Bob a license. That's still going to put a damper on downstream redistribution. If you want to use the code without much legal worry, you'd need to make sure you got it from someone who would be willing to intervene if you got sued by me. As with the revocation question, this too could be avoided be better drafting of the licenses. It's not a problem for Apache 2, for example, because the Apache 2 license grant is "a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form". The key in there is "sublicense". When Alice gives Bob a copy, Bob can get his license directly from Alice via her use of the sublicensing right I gave her. I think that the only widely used open source licenses that do this are Apache 2 and MIT. The GPL family specifically says that you cannot sublicense. I think they did this because they did not want people using sublicensing to give out licenses that did not include all of the GPL rights. Better would have been to allow sublicensing but to explicitly say that when you sublicense you must include all the rights that were in the license you received from upstream.
throwhypothetic 6y ago
If a project is licensed under the AGPL, does that mean contributions to it are also licensed under the AGPL? Hypothetically if all the contributions were public domain code included in an AGPL project, then wouldn't the maintainer be within their rights to include those contributions in a closed-source version of the project?
- ajarmst 6y ago
  You cannot change the license on code that is copyrighted by another party, unless that other party has already licensed you to do so (e.g a release under version x of some license may permit licensing under the terms of later versions.). The whole point of open source licensing is to prevent future releases from being under more restrictive licenses. Copyright holders always have the option to change their own licensing, but they do not have such freedom if their code is a derivative work, especially if their access to the other work was through an open source license.
  - throwhypothetic 6y ago
    That much I understand, but what's the default license if the contributors didn't specify a license with their contributions? Is it implied that their contribution is licensed according to the full project's license? Much of the discussion is assuming that because the project was AGPL, then the various contributions were AGPL as well. Whether or not that's the case is my question.
    - ajarmst 6y ago
      IANAL, but my understanding is that if their contribution is a derivative work (as most would clearly be), they would be subject to the same license restrictions that restricted their access to the original project. I.e. they had no permission to create the derivative work, and thus no right to release it under any license. If the contribution isn't a derivative work, then the project shouldn't be accepting it without a copyright assignment or license.
kemitchell 6y ago
It's perfectly possible to take in software project contributions under license, rather than assignment, without fear of losing rights at the drop of a hat. Apache does it. Eclipse does it. Nearly all the major companies stewarding open projects do it. I'm not aware of any substantive distinction in the words "revocation", "termination", or the like, except with specific reference to 203. The question is whether you can show license if they plead infringement. In practice, they'll often plead breach, too. Bare copyright licenses are largely theoretical here. If the terms of a unilateral grant include assurance of irrevocability, thats a strong fact for reliance and estoppel. If there's any question what the terms meant, it will be resolved by rules of contract construction, because it's not a public statute, and contract rules are the rules we have. There is a default rule, when the terms are silent, but it's just a default.
michaelmrose 6y ago
Can you please cite some examples of copyright licenses which were revoked unilaterally at will and in what circumstances. Note not legal theories to the effect that this is so, actual cases of revocation.
user5994461 6y ago
>>> Not: Gratuitous (not contract) licenses are... Note that "license" is a US concept that does not exist in Europe. Licenses here are systematically interpreted as full fledged contracts and fall under contract law. Have to point out how this seemingly minor point in parenthesis really highlights how the comment is wrong and misplaced for a good chunk of the world. P.S. Not trying to criticize here, just pointing out that copyright is vast and complex.
- dragonwriter 6y ago
  > Note that "license" is a US concept Well, English, long predating the US. > that does not exist in Europe. Well, it exists in the UK and, I'm fairly certain, Ireland. > Licenses here are systematically interpreted as full fledged contracts and fall under contract law. Do contracts in your jurisdictions not require mutual consideration or are licenses without mutual consideration facially defective? And is this gratuitous licenses in general don't exist or just in copyright?
  - user5994461 6y ago
    Long story short. US contracts (common law) require consideration (both parties give something to the other). License couldn't be contracts because they give rights without getting anything in return. That's why it's a separate concept. European contracts (civil law) don't require consideration. Thus there's no need for a separate concept of license. (Allow me to skip the Europe vs UK debate for brevity ^^) You can have a read at this article on a recent GPL court case in France, see section "French Law" that explains how some of the major differences https://thehftguy.com/2020/09/15/french-judge-rules-gpl-license-to-be-inapplicable-in-french-copyright-court/ https://thehftguy.com/2020/09/15/french-judge-rules-gpl-lice... Guess I should write a dedicated article on licenses vs contracts so I can just point people to it. Is it something you would be interested in?
    - kemitchell 6y ago
      In practice, we don't think much about failures of consideration in the US, at least outside of law school. Even without any stated exchange in the terms of a license, courts have obligingly found one for the licensor-plaintiff in surrounding circumstances. See Jacobsen v Katzer way back when, Artifex v Hancom more recently. We do have rules for unilateral contracts and induced reliance, but they don't seem to come up much.