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Random post on the internet by what seems a a nonlawyer. Be careful. "The AGPL, like the GPL, is a copyright licence, not a contract" actual authoriative legal

Random post on the internet by what seems a a nonlawyer. Be careful. "The AGPL, like the GPL, is a copyright licence, not a contract" actual authoriative legal source needed. For what it's worth, this is plain wrong under French law (and I'm a lawyer and there is actual case law in France to support the view that GPL is a contract).

bryanrasmussen 3y ago
It looks like their main point is this one > But this means that it is impossible for the GPL to restrict any action which you would have been legally authorized to do even if the software had not been licenced under any licence. how would this statement be affected by French Law? This is an actual interested question and not HN know-it-all being aggressive and trying to claim you're wrong (figured I should say it)
- hugoroy 3y ago
  The analysis is wrong even if we accept the flawed premise presented (whether in US or French law). Section 13 of the AGPL which is the one the author says is ineffective starts: "Notwithstanding any other provision of this License, if you modify the Program, your modified version must ..." The obligation starts from "modification" of the software, and modification of software is an act protected under copyright law. Hence you need an authorisation for it (without prejudice to fair use and copyright exceptions of course).
  - bluesign 3y ago
    not a lawyer, but if there is no requirement without modification, lets say I developed X, someone made a version Y, they gave it to you. ( as you are the only user, they are only required to share modifications with you ), then you run this without modifications as a network service. how is it ensured users of you have access to the source?
    - hugoroy 3y ago
      Here's how it goes: You develop X and distribute it to B. B modifies X (becomes X.1) and because B has been well advised by lawyers, B knows that modification of software is an act restricted under copyright law, and so B went to go read the LICENSE file and found Section 13 of AGPL. As a result because he/she is diligent, B ensures that the source code of X.1 can be accessed by putting a link to a server in X.1's user interface. See Section 13 of AGPL: B's "modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge ..." B distributes X.1 to C C runs X.1 which is a version that already offers all users a way to get the source code.
    - darnir 3y ago
      You're absolutely correct and if I'm not wrong this is a common loophole used by companies to get around the AGPL (when they really want to) That is, contract the development to a third party. Let's say A wants proprietary modifications to an AGPL product (X). A contracts B, a solutions provider to make the changes. B is legally required to provide the changes to their X.1 product to anyone that uses it. However, only A is their direct user. Now since A did not modify X to X.1 they are not required to provide a direct download link in the application to the sources for X.1 I'm unsure if GPL style protections still apply and I as a user can request the sources from A by making an explicit request. (I guess not, since they never shared the application with me, only access to it via the network)
      - em-bee 3y ago
        i don't think that works. it should not matter who makes the modifications. you are running a modified version of X hence you must provide the source. but the distribution requirement in the AGPL should trigger just as well as in the GPL. the only difference is that access through the network is added as a trigger. so i don't actually believe that the AGPL distribution requirement only triggers on modifications. it should trigger on unmodified versions too, just like the GPL. whoever provides the program, is required to provide the source. this certainly was the intent, and if the AGPL does not implement that intent then that would be a major flaw, which i can't believe they would allow to slip through when designing the license
  - NolF 3y ago
    Yes and no, I think. If you have a valid exemption under copyright (e.g. fair use) then you don't need a licence for the use or making of the derivative work. Obviously such a defence (e.g. fair use) would likely be very difficult in the context of commercial use of the copyrighted work.
  - bitwize 3y ago
    Modification of software for your own use is fair use. This was established in Nintendo v. Galoob. Take for example the DeHackEd Doom patch editor for old-school DOS Doom, which patched the Doom.exe binary to change player speed, enemy behavior, text messages, etc. in ways that WADs alone couldn't. You are free under copyright law to use DeHackEd to patch your own binary, and to distribute your patches so others may use DeHackEd to apply them, but not to distribute patched Doom binaries. The same holds true for any game mod, really, and even those Windows installer editors which produce stripped down versions of Windows (like 98lite or the more recent Mini11).
  - imtringued 3y ago
    Seriously? The author did not read the license and declares it ineffective? I mean come on. The entire point of the AGPL is to make the GPL apply even in the absence of distributing anything.
deleted 3y ago
[deleted]
f1shy 3y ago
Not a lawyer, but as part of my degree, I had to study the relevant parts of the law for an engineer. The one thing I learned, and the teacher (lawer) was very clear about: “all is a contract”. Event two people agreeing something with a handshake, if witnesses are present, can be enforced like a written contract. So I’m extremely uncertain of the assertions made there. Also the AGPL was written with lawyers involved in the process…
- madeofpalk 3y ago
  It's both, right? It's a contract that grants a license.
- zarzavat 3y ago
  Let’s say I use some code from stack overflow and it turns out to be GPL. Can the owner of the code sue to compel specific performance of the GPL? Probably not, since I can’t be bound be a contract I never even saw, I can be sued for copyright infringement however.
  - _ikke_ 3y ago
    No, that's just copyright infringement. You use the license as a contract in order to use the code without infringing on copyright. If you don't adhere to the conditions in the license, the license is revoked, and you're back to copyright infringement, with all the consequences.
  - jeroenhd 3y ago
    I'd assume you follow Stackoverflow's license here (creative commons). You do follow the necessary attribution requirement that Stackoverflow demands of you when you copy snippets from the site, don't you? If you're made aware that the code you copied in good faith was not allowed to be granted to you under those terms, you'd probably just lose your right to use the code and nothing more. The person redistributing code under a wrong license is the main culprit, but since they were never allowed to hand out a license, you're screwed because of them. If you choose not to distribute the source code, you must remove it from your product as soon as possible. Of course, this does assume that the code you copied passes the originality threshold. A simple multiplication or a very basic algorithm can be considered too simple to copyright, and GPL would be powerless. It's so possible the use of the copyrighted code can be considered fair use. In the USA, Oracle sued Google over some GPLv2 API definition, but Google was ruled not to have to abide by the terms of the GPL license in that case, because of fair use reasons.
littlestymaar 3y ago
Hugo Landau already has poor arguments on what should be his domain of expertise[1] so I'd definitely avoid trusting him on anything else… [1]: see this https://www.devever.net/~hl/webcrypto https://www.devever.net/~hl/webcrypto, discussed here https://news.ycombinator.com/item?id=36466133 https://news.ycombinator.com/item?id=36466133

bryanrasmussen 3y ago

It looks like their main point is this one > But this means that it is impossible for the GPL to restrict any action which you would have been legally authorized to do even if the software had not been licenced under any licence. how would this statement be affected by French Law? This is an actual interested question and not HN know-it-all being aggressive and trying to claim you're wrong (figured I should say it)

hugoroy 3y ago
The analysis is wrong even if we accept the flawed premise presented (whether in US or French law). Section 13 of the AGPL which is the one the author says is ineffective starts: "Notwithstanding any other provision of this License, if you modify the Program, your modified version must ..." The obligation starts from "modification" of the software, and modification of software is an act protected under copyright law. Hence you need an authorisation for it (without prejudice to fair use and copyright exceptions of course).
- bluesign 3y ago
  not a lawyer, but if there is no requirement without modification, lets say I developed X, someone made a version Y, they gave it to you. ( as you are the only user, they are only required to share modifications with you ), then you run this without modifications as a network service. how is it ensured users of you have access to the source?
  - hugoroy 3y ago
    Here's how it goes: You develop X and distribute it to B. B modifies X (becomes X.1) and because B has been well advised by lawyers, B knows that modification of software is an act restricted under copyright law, and so B went to go read the LICENSE file and found Section 13 of AGPL. As a result because he/she is diligent, B ensures that the source code of X.1 can be accessed by putting a link to a server in X.1's user interface. See Section 13 of AGPL: B's "modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge ..." B distributes X.1 to C C runs X.1 which is a version that already offers all users a way to get the source code.
  - darnir 3y ago
    You're absolutely correct and if I'm not wrong this is a common loophole used by companies to get around the AGPL (when they really want to) That is, contract the development to a third party. Let's say A wants proprietary modifications to an AGPL product (X). A contracts B, a solutions provider to make the changes. B is legally required to provide the changes to their X.1 product to anyone that uses it. However, only A is their direct user. Now since A did not modify X to X.1 they are not required to provide a direct download link in the application to the sources for X.1 I'm unsure if GPL style protections still apply and I as a user can request the sources from A by making an explicit request. (I guess not, since they never shared the application with me, only access to it via the network)
    - em-bee 3y ago
      i don't think that works. it should not matter who makes the modifications. you are running a modified version of X hence you must provide the source. but the distribution requirement in the AGPL should trigger just as well as in the GPL. the only difference is that access through the network is added as a trigger. so i don't actually believe that the AGPL distribution requirement only triggers on modifications. it should trigger on unmodified versions too, just like the GPL. whoever provides the program, is required to provide the source. this certainly was the intent, and if the AGPL does not implement that intent then that would be a major flaw, which i can't believe they would allow to slip through when designing the license
- NolF 3y ago
  Yes and no, I think. If you have a valid exemption under copyright (e.g. fair use) then you don't need a licence for the use or making of the derivative work. Obviously such a defence (e.g. fair use) would likely be very difficult in the context of commercial use of the copyrighted work.
- bitwize 3y ago
  Modification of software for your own use is fair use. This was established in Nintendo v. Galoob. Take for example the DeHackEd Doom patch editor for old-school DOS Doom, which patched the Doom.exe binary to change player speed, enemy behavior, text messages, etc. in ways that WADs alone couldn't. You are free under copyright law to use DeHackEd to patch your own binary, and to distribute your patches so others may use DeHackEd to apply them, but not to distribute patched Doom binaries. The same holds true for any game mod, really, and even those Windows installer editors which produce stripped down versions of Windows (like 98lite or the more recent Mini11).
- imtringued 3y ago
  Seriously? The author did not read the license and declares it ineffective? I mean come on. The entire point of the AGPL is to make the GPL apply even in the absence of distributing anything.

deleted 3y ago

[deleted]

f1shy 3y ago

Not a lawyer, but as part of my degree, I had to study the relevant parts of the law for an engineer. The one thing I learned, and the teacher (lawer) was very clear about: “all is a contract”. Event two people agreeing something with a handshake, if witnesses are present, can be enforced like a written contract. So I’m extremely uncertain of the assertions made there. Also the AGPL was written with lawyers involved in the process…

madeofpalk 3y ago
It's both, right? It's a contract that grants a license.
zarzavat 3y ago
Let’s say I use some code from stack overflow and it turns out to be GPL. Can the owner of the code sue to compel specific performance of the GPL? Probably not, since I can’t be bound be a contract I never even saw, I can be sued for copyright infringement however.
- _ikke_ 3y ago
  No, that's just copyright infringement. You use the license as a contract in order to use the code without infringing on copyright. If you don't adhere to the conditions in the license, the license is revoked, and you're back to copyright infringement, with all the consequences.
- jeroenhd 3y ago
  I'd assume you follow Stackoverflow's license here (creative commons). You do follow the necessary attribution requirement that Stackoverflow demands of you when you copy snippets from the site, don't you? If you're made aware that the code you copied in good faith was not allowed to be granted to you under those terms, you'd probably just lose your right to use the code and nothing more. The person redistributing code under a wrong license is the main culprit, but since they were never allowed to hand out a license, you're screwed because of them. If you choose not to distribute the source code, you must remove it from your product as soon as possible. Of course, this does assume that the code you copied passes the originality threshold. A simple multiplication or a very basic algorithm can be considered too simple to copyright, and GPL would be powerless. It's so possible the use of the copyrighted code can be considered fair use. In the USA, Oracle sued Google over some GPLv2 API definition, but Google was ruled not to have to abide by the terms of the GPL license in that case, because of fair use reasons.

littlestymaar 3y ago

Hugo Landau already has poor arguments on what should be his domain of expertise[1] so I'd definitely avoid trusting him on anything else… [1]: see this https://www.devever.net/~hl/webcrypto https://www.devever.net/~hl/webcrypto, discussed here https://news.ycombinator.com/item?id=36466133 https://news.ycombinator.com/item?id=36466133