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Tue, 08 Oct 2002 23:51:52 CEST
From: =?iso-8859-1?q?Paul=20Linehan?= <plinehan@yahoo.com>
Subject: Re: [ILUG] Interesting article on free software licences
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X-Original-Date: Tue, 8 Oct 2002 23:51:52 +0200 (CEST)
Date: Tue, 8 Oct 2002 23:51:52 +0200 (CEST)
I have translated the article in full - see
end of post (I think that I've done a far
better job than the Google translation - at
least it's readable now - any corrections
appreciated).
Stuff in {}'s is my (and others) additions
to the debate.
My apologies if I've paraphrased anybody
incorrectly, I will be glad to retract if
anyone is miffed.
The article makes four main points.
1) Absence of critical clauses.
In this case, the idea is that the licence
is invalid because it doesn't specify
under what country's law the GPL is governed.
2) Specification in English only.
That for the end user (as opposed to businesses),
the GPL doesn't apply because it's not written
in French.
3) Arbitary licence change.
The point here is that (under French law) the
author can change the terms of the licence
arbitarily. This is because any granting of
rights by an author must be clearly delimited
in terms of how long, where, to whom, dates and
times. In the absence of such limitations, the
original author has the right to change his
software back to closed on a whim.
{
David Neary makes the point that the copyright
holder automatically retains the right to change
the licence.
Scott replies it simply requires authorisation from
all *copyright holders*
That's not my understanding. French law allows a
GPL type licence *_on condition_* that the
specific conditions of the granting of such
rights are clear - if they are not, there is
nothing to stop the original author taking
back "his work". The lawyers see this
(correctly IMHO) as a weakness in the GPL).
}
4) Hidden defects.
Roughly, this clause means that the author(s)
is/are liable for any defects if the consumer
is not an IT engineer, so if Linux blows up
and data is lost, then the authors are liable.
{
Ciaran Johnson says that M$oft and others have
similar clauses - the point here is that they
are *_all_* invalid - just that this one
affects the GPL also.
Niall O'Broinn makes the point that it is not
a sale, but rather a service/leasing arrangement
and that's why it doesn't come under this point.
I would suggest that the whole thrust of this
article has been to see software "sales" (even
if no money changes hands) as governed very
much by consumer law (in France anyway).
Rick Moen makes the point that it is not
a sale but rather a granting of rights which
are not default.
See the bit about even the granting of
rights by an author having to be
explicitly specified - under French law.
The fact that two IP lawyers in France think that
the GPL is covered as a sale make me feel that
there is a de facto sale and a de facto contract.
}
5) Roughly.
There may be other reasons under French
law why the GPL may be invalid.
----- Whole Article. -----------
Freedom(a) is worth more than these
imperfect licences.
Specialised lawyers look at the GPL.
Lawyer Cyril Rojinsky (duly appointed to
the court) and the jurist Vincent Grynbaum, both
specialised in the area of intellectual property
examine the "free" licences and in particular the
GPL. They have published their study
in the review "Proprietes intellectuelles
(Intellectual property)[1]" and their
conclusion is grim.
Their approach is interesting. The problem for
them is not to know whether freedom is valid under
French law (for them the question is a moot point)
but rather they asked themselves about the form
and the content of the text of free licences, and
in particular the GPL. The problem is not free
programmes, but rather the licence contracts of
free programmes.
Absence of critical clauses.
The authors tell us that first of all, the
reference to "copyright" is not legally
sufficient in the framework of international
contracts (which is the case of licence
contracts for programmes developed and spread
via the Internet). The idea of copyright can
basically include differences from one country
to another. This is why, under international
contracts, it is necessary to specify to which
laws one is referring (French law, American &c.).
The authors only found three public licences
which were correctly formulated on this point:
QPL, IBM Public Licence and the Mozilla Public
Licence).
Specification in the English language.
Next, the authors remind us that (at least in
France), no clause in a contract may be contrary
to French law [2]. However, it turns out that a
licence such as the GPL is contrary to French law
in several respects. Firstly, it is written in
English and the FSF doesn't officially approve
translations.
The "Toubon law" obliges this sort
of contract to be written in French, including for
businesses since the notion of "user" applies not
only to consumers, but also to businesses,
professionals &c.
Contacted by the editors of LinuxFrench,
lawyer Cyril Rojinsky declared that, as
far as business is concerned, the "Toubon
law" is probably doomed to change since
it is in contradiction of European directives
on the subject, but whatever about that, the
problem is still valid for individuals, and
while waiting for it (French law) to change,
French companies have to deal with it, since
it is the law of the land.
A programme under the GPL can suddenly
change licence.
Another problem, much more serious, is
that according to French law, the author of
a free programme can, at any time, invoke
the invalidity of the licence for this
software by simply changing the licence.
In effect, the law of intellectual
property stipulates that the granting of
rights by the author is subordinate to
the condition that each of these granted
rights be the object of a distinct clause
in the granting act (i.e. the licence) and
that the granting of any such rights be
delimited with respect to its scope and its
grantees, and also with respect to its
location (i.e. where such rights may be
excersised) and duration of any such grants.
[3] This is not the case of the GPL nor of
other free licences. Briefly, this means
that in France, or elsewhere if the author
is French, that which is under the GPL could
revert to proprietary from one day to the next.
The problem of the guarantee "hidden defects".
An other very serious flaw is that of the
guarantee. The GPL licences and others show
that the software is delivered "without
guarantee". You are going to immediately
reply that commercical programmes carry the
same clause in their licence contracts,
and this is correct. However, whatever is
written in a licence contract, one cannot
free oneself from the "guarantee from
hidden defects", since it is imposed in the
Civil Code. This concept is poorly understood
by the layman, it protects the buyer
(whoever it may be, individual or business,
since it specifies the Civil Code and not
consumer protection law) against hidden
defects, deliberate or made in good faith by
the seller.
For example, if one buys a pair of socks
in a sale, and the shop has a notice
specifying that "Sale items are neither
refunded nor exchanged", and on arriving
home you notice that one of the socks has
a hole in it, several scenarios are possible.
You could have checked the socks before
purchase: the flaw is deemed "obvious" and
you can sing for your money.
You couldn't check the socks (they were
packaged for example), and in this case,
despite the notice "neither refund nor
exchange", you may invoke "hidden defect"
and have them changed or obtain a refund,
it's up to you.
Personally, I have already invoked in shops
the "hidden defect" clause and it always
worked well (shopkeepers are always very
cooperative if you quote a couple of words
of the Civil Code).
The concept of hidden defect is rather
wide, it is necessary that you hadn't
the possibility of discovering the defect
before buying the product and then
(according to the Civil Code) that you
wouldn't have bought it at that price if
you had known about the
defect.
The third case which is much rarer , is
if you are able to show that the vendor had
knowledge of the defect (hidden), but didn't
inform you. In this case, not only does he
have to reimburse the product, but all
expenses incurred by the sale (metro
tickets to go to the shop, the fuse
which blew when you plugged it in &c.)
This idea of "hidden defect" applies to
all products, including programmes. This
was made abundantly clear by the
authorities (and the courts) surrounding
Y2K.
This is particularly inconvenient for
free programmes, since a site which
offers a Linux distro for download is
supposed to provide a guarantee against
hidden flaws.
LinuxFrench asked Cyril ROJINSKY if
in the case of a free programme,
one could speak about a "hidden" defect
since the source code was available,
he replied "Actually, concerning the
guarantee, the question of obvious
defect will arise. This analyis will
be different depending on whether the
person who downloads the distribution
is an IT professional or not".
OpenSource has this advantage over
the proprietary programme: it protects
the distributor against a guarantee of
hidden defect insofar as the buy is an
IT person. But, for distribution to the
public at large, the problem remains
the same.
Roughly Speaking.
Lawyer Cyril ROJINSKY said it himself,
this study is far from being exhaustive
and many other areas could be explored.
During this interview, we asked ourselves,
for example, about the fragility of the
GPL clause which forbids linking source
code under the GPL with proprietary code.
In effect, the laws of intellectual
property give the right to the user
to modify a programme with the
intention of permitting interoperability
with another programme. If for that,
I need to link with a proprietary library
(communication protocol, device driver)
I may consider as "null and void" this
clause of the GPL.
The conclusion of this study is a wake
up call for the community. "Freedom"
merits more than these shoddy licences,
which should be modified before court
cases over them proliferate and put at
risk the undeniable originality of
this effort.
---------------------------
[1] Une publication de l'Institut
de recherche en propriété
intellectuelle, No4 Juillet 2002
[2] Une telle clause de contrat
qui est opposée à ce que dit la Loi
française est qualifiée en terme
juridique de « clause réputée
non-écrite », c'est-à-dire
qu'on fait comme si cette clause
n'était pas écrite dans le contrat.
C'est pour cela par exemple que vous
pouvez signer un bail pour un
appartement qui stipule que
les enfants sont interdits dans
l'immeuble, et envisager sans
inquiétude d'avoir quand même
un enfant, en effet le code civil
stipule que le devoir d'un locataire
d'un appartement doit se comporter
en « bon père de famille »
[3] Article L131-3
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