There are really two questions when it comes to a purported termination of a free/open license on existing software.
1. What affect, if any, does the attempted termination have on existing licensees?
2. What affect, if any, does the attempted termination have on the ability of people currently without licenses to obtain them?
Most of the discussion on these matters usually just actually considers the first question, and either is unaware of the second or assumes that the answer is automatically the same for both.
Discussion is also often muddled by a tendency to think of licenses as being attached to the software, when in reality licenses are agreements between people concerning the software.
The second question is important because even if it turns out that a license cannot be taken away from those who already have one, either because the license says it is irrevocable or there is some sort of estoppel going on, that doesn't necessarily mean that the copyright owner has to issue new licenses.
One might argue that part of the license terms between the owner and the existing licensees was a promise that new licenses would be issued that those the existing licensees distribute to.
That argument is by no means certain to succeed. If it does, that then raises the question of what happens if the owner refuses, and the existing licensees sue. Would a court order the owner to issue new licenses? Or would they award damages to the existing licensees? (Another issue is whether any such obligation to existing licensees to issue licenses to their distributees extents to tertiary distributions from those people. Really, it is going to be a legal mess if this ever gets to a court).
A small number of free/open licenses allow their licensees to sublicense. The situation is quite a bit clearer with those licenses. If I get the software from Bob, who got it from the author Alice, and the license allows sublicensing, then my license can come as a sublicense from Bob instead of directly from Alice, and so I don't care if Alice claims she is no longer issuing licenses.
Probably the most common free/open licenses that allow sublicensing are the MIT license and the Apache 2.0 license. Apache 2.0 is also explicitly irrevocable.
That article is bullshit. It quotes PJ the paralegal, who confuses the rules regarding commercial licensing contracts with bare gratis licenses.
You should know better.
A license without an attached interest is revocable. The commercial licensees paid for specific clauses regarding when/if revocation could occur: that is why they are protected. The gratis licensee is not.
Yes it is revocable by the copyright holders.. The groklaw article is wrong and was published by a ParaLegal (I am a lawyer for comparison) who was confused because she read a guide regarding commercial copyright licensing contracts. The copyleft article is wrong and was "updated" only when I raised the issue. I refuted it 5 hours after publication.
A gratuitous (free) license, not coupled with an interest (you didn't pay for it), is revocable by the owner. That is the rule. You can cite random interested websites all you want, or you can take it from a lawyer. You will notice their "strategy" is to simply throw themselves on the mercy of the court and beg them not to enforce the owners legal rights.
Quick rundown:
Section 4 of the GPLv2 states "parties who have received..."
The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL. So the court allowed the biz to recover the lost profit.
From the link:
Date Thu, 17 Jan 2019 06:46:25 +0000
From sicevar@redchan ...
Subject GPL revocation (GPC-Slots2): Alex "Skud" Bayley, Leigh Honeywell
share
Quote:
"
> Then you should have used them.
Not necessary, the language used in the press release identifies them
easily.
> should
As if I somehow can't just rescind using their names either.
License to use/modify/etc the GPC Slots 2 code is hereby terminated for.
Alex "Skud" Bayley, and Leigh Honeywell.
(Note: this termination is not to be construed as a lifting of the
previously issued termination regarding the "Geek Feminism collective",
this termination is an addendum)
------------------------
p46 "As long as the project continues to honor the terms of the licenses
under which it recieved contributions, the licenses continue in effect.
There is one important caveat: Even a perpetual license can be revoked.
See the discussion of bare licenses and contracts in Chapter 4"
--Lawrence Rosen
p56 "A third problem with bare licenses is that they may be revocable by
the licensor. Specifically, /a license not coupled with an interest may
be revoked./ The term /interest/ in this context usually means the
payment of some royalty or license fee, but there are other more
complicated ways to satisfy the interest requirement. For example, a
licensee can demonstrate that he or she has paid some consideration-a
contract law term not found in copyright or patent law-in order to avoid
revocation. Or a licensee may claim that he or she relied on the
software licensed under an open source license and now is dependent upon
that software, but this contract law concept, called promissory
estoppel, is both difficult to prove and unreliable in court tests. (The
concepts of /consideration/ and /promissory estoppel/ are explained more
fully in the next section.) Unless the courts allow us to apply these
contract law principles to a license, we are faced with a bare license
that is revocable.
--Lawrence Rosen
p278 "Notice that in a copyright dispute over a bare license, the
plaintiff will almost certainly be the copyright owner. If a licensee
were foolish enough to sue to enforce the terms and conditions of the
license, the licensor can simply revoke the bare license, thus ending
the dispute. Remeber that a bare license in the absence of an interest
is revocable."
--Lawrence Rosen
Lawrence Rosen - Open Source Licensing - Sofware Freedom and
Intellectual property Law
p65 "Of all the licenses descibed in this book, only the GPL makes the
explicity point that it wants nothing of /acceptance/ of
/consideration/:
...
The GPL authors intend that it not be treated as a contract. I will say
much more about this license and these two provisions in Chapter 6. For
now, I simply point out that the GPL licensors are in essentially the
same situation as other open source licensors who cannot prove offer,
acceptance, or consideration. There is no contract."
--Lawrence Rosen
------------------------
> David McGowan, Professor of Law, University of Minnesota Law School:
> "Termination of rights
> [...] The most plausible assumption is that a developer who releases
> code under the GPL may terminate GPL rights, probably at will.
> [...] My point is not that termination is a great risk, it is that it
> is not recognized as a risk even though it is probably relevant to
> commercial end-users, accustomed to having contractual rights they can
> enforce themselves.
[Notice: the revocation of the "Geek Feminists"'s license /just/ occurred. 2019. January.]
The original author, after years of silence, notes that the "Geek Feminist" changed[1] a bunch of if-then statements which were preceded by a loop waiting for string input to a switch statement. The author reportedly noted that to use a switch statement in such an instance is no more preformant than the if-thens. Switch statements should be used where the input to the switch statement is numerical, and of a successive nature, for most efficient use of the jump table that is generated from said code.
The author reportedly was offended, after quiet observation of the group, that the "Geek Feminists" mocked his code, mocked his existence as a male, and never did any work on the code afterwards and never updated to include new slot machines added to the original code by author subsequently.
The author notes that he neither sought nor received any compensation for the granted license, that is was a gratuitous license, and that there never was any refutation of his default right to rescind given. (A right founded in the property law of licenses.)
The copyright owner has reportedly watched quietly as each year the "Geek Feminists" published a recount of their heroic efforts regarding his code.[2][3] Presumably he has now had enough of it all...
The author notes that the SF Conservancy attempts to construe a particular clause in the GPL version 2 license text as a "no revocation by grantor clause", however that clause states that if a licensee suffers and automatic-revocation by operation of the license, that licensees down stream from him do not suffer the same fate. The author of "GPC-Slots 2" reportedly notes that said clause does only what it claims to do: clarifies that a downstream licensee, through no fault of his own, is not penalized by the automatic revocation suffered by a licensee he gained a "sub-license" from (for lack of a better term.)
The author reportedly notes that version 3 of the GPL did not exist when he published the code, additionally the author notes that even if there was a clause not to revoke, he was paid no consideration for such a forbearance of a legal right of his and thus said clause is not operative against him, the grantor, should it exist at all.
(Editor's note: GPL version 3 contains an explicit "no-revocation-by-grantor" clause, in addition to a term-of-years that the license is granted for. Both absent in version 2 of the GPL)
The author reportedly has mulled an option to register his copyright and then to seek damages from the "Geek Feminists" if they choose to violate his copyright post-hence.
(Editors note: Statutory damages for willful copyright infringement can amount to $150,000 plus attorney's fees for post registration violations of a differing nature to pre-registration violations.)
GPC-Slots 2 is a text console mode casino game available for linux with various slot machines, table games, and stock market tokens for the player to test his luck. For the unlucky there is a Russian Roulette function.
[Notice: the revocation of the "Geek Feminists"'s license /just/ occurred. 2019. January.]
>The GPL does not contain any revokability clause.
It does not have to. In the _USA_ if you paid for a commercial software license contract, then if there is a revokability clause, that clause is governing. Because you paid for it to be so.
Here there was no contract, no payment, nothing. The code was just put out there, under certain permissions, WHICH CAN BE WITHDRAWN AT WILL. (Same with linux). It's a bare license.
No it did not. He has already made 2 million euros. He chose to withdraw that single case. It doesn't mean he didn't have a case, it means he didn't want to waste the money fighting that particular adversary in the court and the appeals.
Also that is a case from Europe, you moron, not from the US.
>IBM and Red Hat have armies of legal IP experts, I don't think they are losing one iota of sleep.
Which is why Red Hat sold itself to IBM soon after the revocability debate started up (again) after the CoC.
Also the SFConservancy's post was written by one of Red Hat's lawyers, which I immediately debunked 5 hours after it was published.
Quick rundown:
Section 4 of the GPLv2 states "parties who have received..."
The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL.
>>1019960
Those "updates" are because _I_ raised the issue. They are bullshit. Read them, weasel words all over the place, the actual "paper" doesn't really say anything. Pamela Chestek is a lawyer on loan from Red Hat, because the SFConservancy apparently doesn't have any of it's own (the guy has always ran it, BKuhn is not a lawyer and is instead a baby-faced "technologist" who complains women aren't respected enough, recently they hired a lawyer who they had to put in as the chairwoman (and demote BKuhn) because a lawyer cannot be under a non-lawyer according to Bar rules).
Their whole argument is to misconstrue a clause in the GPLv2 as if they were a promise not to revoke by the grantor (it is not: it is an explanation of what happens to a downstream licensee's permission if an _upstream_ licensee loses his license). They then misconstrue it again as if it was operative against the grantor, when the GPLv2 explicitly defines "you" as the licensee (NOT the grantor). Then they talk about a case where a biz created a contract that allowed an offeree the option to accept the contract by paying for a commercial license or going with the GPL. Distinguishable from when the GPL stands alone as a bare license with no offer to do business attached.
Quick rundown:
Section 4 of the GPLv2 states "parties who have received..."
The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL.
David McGowan, Professor of Law, University of Minnesota Law School.
-----
"Termination of rights
[...] The most plausible assumption is that a developer who releases code under the GPL may terminate GPL rights, probably at will.
[...] My point is not that termination is a great risk, it is that it is not recognized as a risk even though it is probably relevant to commercial end-users, accustomed to having contractual rights they can enforce themselves.
The Free Software Foundations GPL FAQ disagrees with the conclusion I reach here. The FAQ asks rhetorically can a developer of a program who distributed it under the GPL later license it to another party for exclusive use and answers No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn. 89 Similarly, Lawrence Rosen, general counsel to the Open Source Initiative, has stated (in an FAQ on the SCO/IBM case) that Linux is available free, forever. Neither statement addresses the issue I raise here; I am not aware of the legal basis for either statement. I read them as understandable efforts to keep community members from over-reacting to low-probability risks. That may be sensible real-world pragmatism, a question I leave to the entrepreneurs. As a strictly legal matter, however, these comforting statements are too strong.[...]
What would happen if an author terminated GPL rights? If a single rights-holder held all the rights in the program, then termination would stop future F/OSS development of that program; users would no longer have the right to distribute modified versions of the code, or even unmodified copies of the versions they had."
Nope, the rescission happened this month, january 2019, and if the little game can rescind, so can unhappy old linux programmers who don't like being ruled over by non-programmers as "thank you" for their decades of gratis work.
They can rescind if they wish. Linus never required them to sign over their copyrights (unlike the FSF), which is the reason why linux became so much more popular that HURD amongst developers. Nothing is free however. It comes with the danger of unilateral rescission by the copyright holder. You can believe whatever you want but that is why the FSF always required assignment. Previously the linux programmers did not have non-programmer women attempting to rule over their speech and "conduct". Now they do. There is good reason to rescind in the face of this gross disrespect.
The idea in the past was "the code is all that matters".
Now it is "women rule you, though they do little to none of the work, just like everywhere else in western life, mmmaallleee"
The men who programmed the work for free are now treated as utterly replaceable worthless cogs. (See the utterances of: Bruce Perens and Matthew Garrett, on this issue (both who feel the programmers are replaceable and should be thrown out (but their code kept!) if their "conduct" is "offensive"). They can and they __SHOULD__ rescind the granted gratuitous licenses.
The GPL has been retroactively rescinded before: the ATSC capture and edit tool, the distros did indeed quietly comply. It is simply a right of the owner in the US. He can revoke your permission if you did not pay for it in some way.
Do you know why? : Because it is his property, he is merely lending it to you, allowing you to use it (that's what a license is). He can end this permission, this loan, at any time, if it's for free.
PJ was and is a paralegal. She doesn't know what the fuck she is talking about (same with you). She's reading from "Copyright Litigation Handbook" on westlaw. She reads about the irrevocability of commercial copyright license contracts. The reason those are non-revocable outside of the terms is because ///THEY WERE PAID FOR///. You BOUGHT the terms. You BOUGHT the "this is the way we revoke the license" term. That is what you are purchasing. Security.
Nice source though. I cite the man who wrote the /book/ on opensource litigation, who you can look up and is a lawyer (since you won't believe me), and you cite some paralegal who immediately stopped talking once she was outed (because she was wrong and perhaps using company time to run up bills on westlaw).
1. What affect, if any, does the attempted termination have on existing licensees?
2. What affect, if any, does the attempted termination have on the ability of people currently without licenses to obtain them?
Most of the discussion on these matters usually just actually considers the first question, and either is unaware of the second or assumes that the answer is automatically the same for both.
Discussion is also often muddled by a tendency to think of licenses as being attached to the software, when in reality licenses are agreements between people concerning the software.
The second question is important because even if it turns out that a license cannot be taken away from those who already have one, either because the license says it is irrevocable or there is some sort of estoppel going on, that doesn't necessarily mean that the copyright owner has to issue new licenses.
One might argue that part of the license terms between the owner and the existing licensees was a promise that new licenses would be issued that those the existing licensees distribute to.
That argument is by no means certain to succeed. If it does, that then raises the question of what happens if the owner refuses, and the existing licensees sue. Would a court order the owner to issue new licenses? Or would they award damages to the existing licensees? (Another issue is whether any such obligation to existing licensees to issue licenses to their distributees extents to tertiary distributions from those people. Really, it is going to be a legal mess if this ever gets to a court).
A small number of free/open licenses allow their licensees to sublicense. The situation is quite a bit clearer with those licenses. If I get the software from Bob, who got it from the author Alice, and the license allows sublicensing, then my license can come as a sublicense from Bob instead of directly from Alice, and so I don't care if Alice claims she is no longer issuing licenses.
Probably the most common free/open licenses that allow sublicensing are the MIT license and the Apache 2.0 license. Apache 2.0 is also explicitly irrevocable.
Here the licensees paid nothing, did nothing, promised nothing, etc for the license. It is a pure gratuity. Bare permission.
Without the permission they have no right to modify, make derivative works, redistribute etc.
The license simply grants permissions, for nothing.
It can be rescinded, and has been.
You should know better.
A license without an attached interest is revocable. The commercial licensees paid for specific clauses regarding when/if revocation could occur: that is why they are protected. The gratis licensee is not.
A gratuitous (free) license, not coupled with an interest (you didn't pay for it), is revocable by the owner. That is the rule. You can cite random interested websites all you want, or you can take it from a lawyer. You will notice their "strategy" is to simply throw themselves on the mercy of the court and beg them not to enforce the owners legal rights.
Quick rundown: Section 4 of the GPLv2 states "parties who have received..." The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL. So the court allowed the biz to recover the lost profit.
It is freely revocable by the grantor.
" > Then you should have used them. Not necessary, the language used in the press release identifies them easily.
> should As if I somehow can't just rescind using their names either.
License to use/modify/etc the GPC Slots 2 code is hereby terminated for. Alex "Skud" Bayley, and Leigh Honeywell. (Note: this termination is not to be construed as a lifting of the previously issued termination regarding the "Geek Feminism collective", this termination is an addendum)
--MikeeUSA-- (electronic signature :D )
>> 1019403 Their response is irrelevant. "
Discussions with author of program involved: http://8ch.net/tech/res/1013409.html http://8ch.net/tech/res/1017824.html http://8ch.net/tech/res/1018729.html ------------------------
https://slashdot.org/submission/9087542/author-recinds-gpl
------------------------ p46 "As long as the project continues to honor the terms of the licenses under which it recieved contributions, the licenses continue in effect. There is one important caveat: Even a perpetual license can be revoked. See the discussion of bare licenses and contracts in Chapter 4" --Lawrence Rosen
p56 "A third problem with bare licenses is that they may be revocable by the licensor. Specifically, /a license not coupled with an interest may be revoked./ The term /interest/ in this context usually means the payment of some royalty or license fee, but there are other more complicated ways to satisfy the interest requirement. For example, a licensee can demonstrate that he or she has paid some consideration-a contract law term not found in copyright or patent law-in order to avoid revocation. Or a licensee may claim that he or she relied on the software licensed under an open source license and now is dependent upon that software, but this contract law concept, called promissory estoppel, is both difficult to prove and unreliable in court tests. (The concepts of /consideration/ and /promissory estoppel/ are explained more fully in the next section.) Unless the courts allow us to apply these contract law principles to a license, we are faced with a bare license that is revocable. --Lawrence Rosen
p278 "Notice that in a copyright dispute over a bare license, the plaintiff will almost certainly be the copyright owner. If a licensee were foolish enough to sue to enforce the terms and conditions of the license, the licensor can simply revoke the bare license, thus ending the dispute. Remeber that a bare license in the absence of an interest is revocable." --Lawrence Rosen
Lawrence Rosen - Open Source Licensing - Sofware Freedom and Intellectual property Law
p65 "Of all the licenses descibed in this book, only the GPL makes the explicity point that it wants nothing of /acceptance/ of /consideration/: ... The GPL authors intend that it not be treated as a contract. I will say much more about this license and these two provisions in Chapter 6. For now, I simply point out that the GPL licensors are in essentially the same situation as other open source licensors who cannot prove offer, acceptance, or consideration. There is no contract." --Lawrence Rosen
------------------------ > David McGowan, Professor of Law, University of Minnesota Law School:
> "Termination of rights
> [...] The most plausible assumption is that a developer who releases > code under the GPL may terminate GPL rights, probably at will.
> [...] My point is not that termination is a great risk, it is that it > is not recognized as a risk even though it is probably relevant to > commercial end-users, accustomed to having contractual rights they can > enforce themselves.
[Notice: the revocation of the "Geek Feminists"'s license /just/ occurred. 2019. January.]
The original author, after years of silence, notes that the "Geek Feminist" changed[1] a bunch of if-then statements which were preceded by a loop waiting for string input to a switch statement. The author reportedly noted that to use a switch statement in such an instance is no more preformant than the if-thens. Switch statements should be used where the input to the switch statement is numerical, and of a successive nature, for most efficient use of the jump table that is generated from said code.
The author reportedly was offended, after quiet observation of the group, that the "Geek Feminists" mocked his code, mocked his existence as a male, and never did any work on the code afterwards and never updated to include new slot machines added to the original code by author subsequently.
The author notes that he neither sought nor received any compensation for the granted license, that is was a gratuitous license, and that there never was any refutation of his default right to rescind given. (A right founded in the property law of licenses.)
The copyright owner has reportedly watched quietly as each year the "Geek Feminists" published a recount of their heroic efforts regarding his code.[2][3] Presumably he has now had enough of it all...
The author notes that the SF Conservancy attempts to construe a particular clause in the GPL version 2 license text as a "no revocation by grantor clause", however that clause states that if a licensee suffers and automatic-revocation by operation of the license, that licensees down stream from him do not suffer the same fate. The author of "GPC-Slots 2" reportedly notes that said clause does only what it claims to do: clarifies that a downstream licensee, through no fault of his own, is not penalized by the automatic revocation suffered by a licensee he gained a "sub-license" from (for lack of a better term.)
The author reportedly notes that version 3 of the GPL did not exist when he published the code, additionally the author notes that even if there was a clause not to revoke, he was paid no consideration for such a forbearance of a legal right of his and thus said clause is not operative against him, the grantor, should it exist at all.
(Editor's note: GPL version 3 contains an explicit "no-revocation-by-grantor" clause, in addition to a term-of-years that the license is granted for. Both absent in version 2 of the GPL)
The author reportedly has mulled an option to register his copyright and then to seek damages from the "Geek Feminists" if they choose to violate his copyright post-hence.
(Editors note: Statutory damages for willful copyright infringement can amount to $150,000 plus attorney's fees for post registration violations of a differing nature to pre-registration violations.)
[1]https://geekfeminism.org/2009/10/19/ [2]https://geekfeminism.org [3]http://geekfeminism.wikia.com
GPC-Slots 2 is a text console mode casino game available for linux with various slot machines, table games, and stock market tokens for the player to test his luck. For the unlucky there is a Russian Roulette function.
[Notice: the revocation of the "Geek Feminists"'s license /just/ occurred. 2019. January.]
Here there was no contract, no payment, nothing. The code was just put out there, under certain permissions, WHICH CAN BE WITHDRAWN AT WILL. (Same with linux). It's a bare license.
>I't already been tried, and the guy who attempted a shakedown based on their kernel contributions failed hard. https://www.zdnet.com/article/linux-beats-internal-legal-thr...
No it did not. He has already made 2 million euros. He chose to withdraw that single case. It doesn't mean he didn't have a case, it means he didn't want to waste the money fighting that particular adversary in the court and the appeals. Also that is a case from Europe, you moron, not from the US.
>IBM and Red Hat have armies of legal IP experts, I don't think they are losing one iota of sleep. Which is why Red Hat sold itself to IBM soon after the revocability debate started up (again) after the CoC. Also the SFConservancy's post was written by one of Red Hat's lawyers, which I immediately debunked 5 hours after it was published.
Quick rundown: Section 4 of the GPLv2 states "parties who have received..." The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL.
Their whole argument is to misconstrue a clause in the GPLv2 as if they were a promise not to revoke by the grantor (it is not: it is an explanation of what happens to a downstream licensee's permission if an _upstream_ licensee loses his license). They then misconstrue it again as if it was operative against the grantor, when the GPLv2 explicitly defines "you" as the licensee (NOT the grantor). Then they talk about a case where a biz created a contract that allowed an offeree the option to accept the contract by paying for a commercial license or going with the GPL. Distinguishable from when the GPL stands alone as a bare license with no offer to do business attached.
Quick rundown: Section 4 of the GPLv2 states "parties who have received..." The "you" here is the licensee, it is not the grantor (See Section 0 of the GPLv2 "Each licensee is addressed as "you". "). It is not applicable against the grantor of the license: it is a rule the licensee has to abide by, set by the grantor, in-order to have permission to modify or create derivative works at all.
About the printer driver case: The contract in that case is the preliminary writing, the offer to do business ("pay us, or alternatively follow the GPL"). The acceptance of that contract by following the terms of that preliminary writing (choosing the GPL instead of paying). That is why both contract and damages under copyright are available. Damages for the contract portion ("pay us"), or damages for violating the GPL license.
The parties later settled out of court. The key is that the businesses offer created two alternative means of acceptance of it's offer to do business: pay for the commercial license, or follow the GPL.
----- "Termination of rights
[...] The most plausible assumption is that a developer who releases code under the GPL may terminate GPL rights, probably at will.
[...] My point is not that termination is a great risk, it is that it is not recognized as a risk even though it is probably relevant to commercial end-users, accustomed to having contractual rights they can enforce themselves.
The Free Software Foundations GPL FAQ disagrees with the conclusion I reach here. The FAQ asks rhetorically can a developer of a program who distributed it under the GPL later license it to another party for exclusive use and answers No, because the public already has the right to use the program under the GPL, and this right cannot be withdrawn. 89 Similarly, Lawrence Rosen, general counsel to the Open Source Initiative, has stated (in an FAQ on the SCO/IBM case) that Linux is available free, forever. Neither statement addresses the issue I raise here; I am not aware of the legal basis for either statement. I read them as understandable efforts to keep community members from over-reacting to low-probability risks. That may be sensible real-world pragmatism, a question I leave to the entrepreneurs. As a strictly legal matter, however, these comforting statements are too strong.[...]
What would happen if an author terminated GPL rights? If a single rights-holder held all the rights in the program, then termination would stop future F/OSS development of that program; users would no longer have the right to distribute modified versions of the code, or even unmodified copies of the versions they had."
They can rescind if they wish. Linus never required them to sign over their copyrights (unlike the FSF), which is the reason why linux became so much more popular that HURD amongst developers. Nothing is free however. It comes with the danger of unilateral rescission by the copyright holder. You can believe whatever you want but that is why the FSF always required assignment. Previously the linux programmers did not have non-programmer women attempting to rule over their speech and "conduct". Now they do. There is good reason to rescind in the face of this gross disrespect.
The idea in the past was "the code is all that matters". Now it is "women rule you, though they do little to none of the work, just like everywhere else in western life, mmmaallleee"
The men who programmed the work for free are now treated as utterly replaceable worthless cogs. (See the utterances of: Bruce Perens and Matthew Garrett, on this issue (both who feel the programmers are replaceable and should be thrown out (but their code kept!) if their "conduct" is "offensive"). They can and they __SHOULD__ rescind the granted gratuitous licenses.
The GPL has been retroactively rescinded before: the ATSC capture and edit tool, the distros did indeed quietly comply. It is simply a right of the owner in the US. He can revoke your permission if you did not pay for it in some way.
Do you know why? : Because it is his property, he is merely lending it to you, allowing you to use it (that's what a license is). He can end this permission, this loan, at any time, if it's for free.
Nice source though. I cite the man who wrote the /book/ on opensource litigation, who you can look up and is a lawyer (since you won't believe me), and you cite some paralegal who immediately stopped talking once she was outed (because she was wrong and perhaps using company time to run up bills on westlaw).
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Again, citing an article from a rag that cites PJ the paralegal. ( Try this instead: https://www.amazon.com/Open-Source-Licensing-Software-Intell... )