Richard Kenner kenner@vlsi1.ultra.nyu.edu
Mon Jul 16 14:24:00 GMT 2007

> Seems simple: the COPYING file contains the conditions, and all files
> have the same as well. And it's all directly from the copyright holder.

Except quite often it ISN'T direct from the copyright holder.  E.g., a
RedHat or Debian distribution.

> > It's critical to understand that copyright and license agreements in files
> > have *no legal significance whatsoever* except *possibly* to try to
> > establish what was in the mind of the author.
> What is significant then?

Some statement that can be viewed in the context of a contractual
relationship between the parties.

> > It's likely true that if they FSF were to "distribute" software in the
> > sense of mailing somebody a CD and there was no license on paper, you could
> > *probably* indeed rely on the license within the CD as being definitive.
> What the difference between a CD and, for example, FTP or CVS etc?

Passive vs. active.  If I send you a CD, I'm affirmatively doing something.
And it's normally because I've gotten a request for it.  So there's a
contractual relationship between us and the license becomes part of that
contract so it's unambiguous what claim is being made.

If you go out and access an FTP or CVS server that I have, I might be aware
of you after the fact, but I certainly wasn't *before* the fact.  It's much
harder to argue that a contractual relationship exists between us (that's
why when you download software from many sites, you have to explicitly
check a box acknowleging the license terms, either at download or
installation time, but GNU software normally doesn't do that).

It's important to keep in mind that a license is not a declaration of some
sort but is rather a *contract* between two parties talking about the terms
that one party is laying out for the other about usage of the software and
sometimes other things relevant to the sale (such as usage of data from a
database obtained via the software).  Although Robert and I got into an
disagreement over exactly to what extent the license stands alone (and we
are still continuing that discussion), the important point to keep in mind
is that a license is not merely a statement of copying conditions, but a
*contract* between two parties, which is normally signed (or at least
acknowleged) by both parties.

If X sends Y some software, Y must presume that software is copyrighted and
ask X for the license under which they can copy (i.e., use) that software.
Y can't simply look inside that software, find that it claims it's
copyrighted by party Z (the FSF) and has a file COPYING that purports to be
the "license".  That *isn't* the license.  The license would be a contract
between X and Y (not Y and Z or X and Z) saying under what terms Y may copy
the software it received from X.  Normally what happens is that X says
something like "this is free software and the license is what's in the
file COPYING".  Y may choose to accept this or may demand that X indemnifies
it is that statement isn't true.

You might say this isn't relevant is X is Z (e.g, the FSF).  But it is.
Let's suppose that the software in question accidentally has something
that infringes the copyright of some third party, S.  That third party
now comes after you.  Unless it's clear that there's some sort of
indemnification agreement with X as part of the contract, you're in trouble.

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