Re: Irrevocability and intellectual property

On Tue, May 27, 2003 at 04:12:56PM -0400, Peter D. Ward wrote:
> 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.

I was considering open source licenses only because closed-source licenses
typically carry no redistribution rights at all. For those few cases where
the user does have the right to freey redistribute OCO programs, my comments
apply as well.

In any case, how am I supposed to stop someone redistributing Hercules?
Especially when he has no reason to believe his right to do so may have been
invalidated? Especially when I have absolutely no way of knowing who has it,
or where they got it?

> 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.

The hook is in the Open Source Definition. A basic premise of an
OSD-compliant license (of which the QPL is one, as well as the better-known
GPL and BSD licenses) is that the recipient of such code has the irrevocable
right to redistribute the code, both in source and object forms, under the
terms of the license (although the terms may vary, this attribute does not).
If a license does not provide for that, it's not OSD-compliant. I'll agree
that it's not unique to OSD-compliant licenses, but it *is* common to all of
them. If you say a license if OSD-compliant, you say that (among other
things) it's transferable and irrevocable.

If the grantor had no right to grant the rights in that license, then he
screwed up and is liable for it. That doesn't mean that the court can
effectively force him to do anything about the versions out there in the
wild, any more than they can force him to strap a pair of Pratt & Whitney
JT8D turbojet engines to a pig and order him to start passenger service to
Pago Pago. That pig may fly, but you'll never get the drink cart aboard.

> 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.

Because that doesn't answer the question. Whether or not some people are
running the software without a license has no bearing on whether or not IBM
will issue such a license.

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