Re: Irrevocability and intellectual property

I see nothing special here about the operation of open source in the case where
someone's rights were abused.  Both open and closed source licenses have
downstream licencees whose rights are no more than what the person who granted
them had the authority to grant.   In the closed source case there is no way for
the errant grantor to prevent his down-stream licencees from re-distributing the
OCO code that turned out to be under a cloud of title, but the redistribution is
still not sanctioned no matter what the errantly granted license says.   The fact
that the errant grantor promised in the license that the grant was irrevocable is
irrelevant in the case where the grantor had no right to make such a grant of
someone else's property.   The courts as a recourse is the same dynamic be it
errantly granted open source or closed source.  I'm still looking for the unique
hook that you imply open source wields in such cases.

On the subject of licenses for Hercules and whether or not they are sanctioned
and the uncertainty you claim to have on this matter, why don't you do as I do
and write posters to the Herc list asking after their authority to run the modern
OS they are asking about on their system?   My interest is to learn if any of
them have obtained T's&C's that are different and even perhaps more advantageous
than those under which such licenses are granted for use on Flex-ES.   From that
one can get an appreciation (albeit anecdotally) for the licensing landscape.

PDW


Jay Maynard wrote:

> On Tue, May 27, 2003 at 01:57:27PM -0400, Peter D. Ward wrote:
> > Then your proposition that QPL protects against someone like IBM from
> > interferring with distribution of Herc is based not on upon any inherent
> > trait of the QPL or open source, rather its based upon your belief that
> > IBM has no property interest.  Makes your statement that "The QPL, like
> > other Open Source licenses, is irrevocable, and gives people the right to
> > redistribute copies they have in perpetuity" true only as a tautology ---
> > no legal interest = no legal interest.
>
> That's not what I said. If you'd read further, you'd have seen the
> discussion of the Linux kernel. There's nothing about that discussion that
> is limited to the Linux kernel. If IBM were to try to force me to stop
> distributing Hercules, they could undoubtedly do so, but that would not end
> its distribution, as I have no way to force others to stop distributing it.
> The license is irrevocable, and would have to be invalidated by a court in
> order for it to be otherwise. This is independent of the basis, or lack
> thereof, of which claims for intellectual property are involved. A court,
> after all, cannot order the impossible, and ordering me to stop all
> distribution by others of the Hercules source code without invalidating the
> QPL falls into that category. This is true of any Open Source Definition-
> compliant license, as a basic design feature of that definition.
>
> > SCO is not asserting any patent claims, and in consequence the down stream
> > distributional consequence of their prevailing may be somewhat muted.  ie,
> > copyright violations are perhaps more straightforwardly routed around
> > then, say, patent claims.
>
> SCO is actually asserting not only copyright, but trade secret claims as
> well. The latter may be harder to route around, as they're the ones that
> cover the most interesting bits of the Linux kernel.
>
> > Given your claim that IBMers agree you've done about all you could with
> > regard to IBM's property interests, why do you suppose they apparently
> > decline to offer software licensing on top of Hercules?
>
> I have no idea that they even decline to license software to run on Hercules
> beyond your and Phil Payne's assertions. In particular, despite repeated
> requests, I have never been sent any sort of an authoritative statement from
> IBM itself, either directly or by way of a third party.
>
> If I grant your assertion for the sake of argument, then I still have no
> idea why they would make that choice. IBM has not seen fit to share its
> thoughts with me. I doubt strongly they've seen fit to share their thoughts
> on the subject with you, either. The statement I made was based on
> discussions with individual IBMers who had previously expressed concerns
> that Hercules was nothing more than a vehicle to enable piracy of licensed
> IBM software, and may or may not represent IBM's official position; further,
> they and I were referring to the issue of piracy of IBM licensed software,
> not of any other intellectual property claims IBM may or may not have
> against Hercules - of which you and Phil Payne are the only ones to raise
> any sort of a fuss. Not even the IBMers I've spoken to have raised questions
> about anything else. With all due respect, I submit that you and Mr. Payne
> have no standing to be raising such issues.
>
>
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>
>
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