Re: copyleft (was: Re: Owning a piece of my mind)

["Prof. Michael H. Davis" <michael.davis@law.csuohio.edu>]

I sense that I do not understand the real nature of the turf here, and
so my comment may well be only peripheral to the underlying, apparently
unstated, dispute. Whether the GPL "is" a shrink-wrap license depends
upon what it is about shrink-wrap licenses that makes them significant
or important. The shrink-wrap license, of course, is a contract, and is
treated as a contract by the law. Its significance, in that sense, is
that it is a one-sided contract, in the sense that, defying the
underlying principles of contract law, it is reached without agreement
by both parties--let alone bargaining. In that sense therefore, the GPL
is a shrink-wrap license. The only distinctive thing about this shrink
wrap is that it does not apply at the time of acquisition but at the
time of distribution. But if what is distinctively important about the
shrink wrap is not the time it applies, but the terms and conditions
under which it becomes effective, you can see that this is no
different--in the legal sense of whether it is a shrink wrap or not. Its
terms apply whether or not the user wants those terms to apply. It
applies without real consent--except by virtue of having
used/distributed/sold it (other shrink wraps, of course are identical
except they are effective by virtue of having acquired it). Maybe the
important point here is not whether it is a shrink wrap but the
fairness, or desirability, of its terms, but of course you know that no
court is going to examine that because that would undermine ALL of
contract law.

I have the feeling that on the real issues here, Richard, as usual, is
probably right. That he insists it is not a shrink wrap is a sign of
some other dispute. I think at least one important difference (social or
political, not legal) is the purpose to which it is being put. Of
course, our legal system specifically excludes that factor, usually, in
order to get other, usually oppressive, things accomplished. But, of
course, it is important whether somebody uses a license to exclude
openness and progress or whether they use it to promote those values.
This doesn't depend upon whether the GPL is a shrink wrap, of course,
which I believe it is, but unfortunately since the legal system doesn't
give a damn about openness and progress, this may be the only peg upon
which to hang the issue.

Mickey Davis

Richard Stallman wrote:
> 
>     The copyright or copyleft on General Public Licensed works
>     is a standard copyright.  However, the license must be
>     adhered to, else the user has no rights to redistribute the
>     work (with restrictions) or reuse it.
> 
> Yes, that is a consequence of copyright law.
> 
>                                            Thus it is a sort
>     of shrinkwrap license, similar to the ones that UCITA
>     intends to enforce in some states.
> 
> No, it is not a shrink wrap license, nothing like that.  You've got
> the picture entirely wrong.  Shrink wrap licenses are based on the
> claim that the user has agreed to a contract by acquiring a copy.  The
> GPL does NOT claim that the user has agreed to any sort of contract by
> acquiring a copy.
> 
>       The GPL allows
>     redistributing the work only under certain conditions.
>     Thus it "infects" the work being distributed
> 
> This is based on a misunderstanding of the way the GPL works.
> Actually, the situation is much simpler: my choice of the GPL affects
> what you do with your program if it includes a substantial amount of
> my code.
> 
>