Comment 45 for bug 12605

Message-Id: <email address hidden>
Date: Fri, 11 Feb 2005 17:59:33 -0500
From: "Phillip J. Eby" <email address hidden>
To: Tim Peters <email address hidden>,
 Michael Chermside <email address hidden>
Cc: <email address hidden>, <email address hidden>,
 <email address hidden>
Subject: Re: [Python-Dev] license issues with profiler.py and
  md5.h/md5c.c

At 03:46 PM 2/11/05 -0500, Tim Peters wrote:
>If Larry is correct, it isn't legally possible for an individual in
>the US to disclaim copyright, regardless what they may say or sign.
>The danger then is that accepting software that purports to be free of
>copyright can come back to bite you, if the author later changes their
>mind (from your POV; the claim is that from US law's POV, nothing has
>actually changed, since the author never actually gave up copyright to
>begin with).
>
>The very fact that this argument exists underscores the desirability
>of only accepting software with an explicit license, spelling out the
>copyright holder's intents wrt distribution, modification, etc. Then
>you're just in legal mud, instead of legal quicksand.

And as long as we're flailing about in a substance which may include, but
is not limited to, mud and/or quicksand or other flailing-suitable legal
substances, it should be pointed out that even though software presented by
its owner to be in the public domain is technically still copyright by that
individual, the odds of them successfully prosecuting a copyright
enforcement action might be significantly narrowed, due to the doctrine of
promissory estoppel.

Promissory estoppel is basically the idea that one-sided promises *are*
enforceable when somebody reasonably relies on them and is injured by the
withdrawal. IBM, for example, has pled in its defense against SCO that
SCO's distribution of its so-called proprietary code under the GPL
constituted a reasonable promise that others were free to use the code
under the terms of the GPL, and that IBM further relied on that
promise. Ergo, they are claiming, SCO's promise is enforceable by law.

Of course, SCO v. IBM hasn't had any judgments yet, certainly not on that
subject, and maybe never will. But it's important to know that the law
*does* have some principles like this that allow overriding the more
egregiously insane aspects of the law. :)

Oh, also, if somebody decides to back out on their dedication to the public
domain, and you can show that they did it on purpose, then that's "unclean
hands" and possibly "copyright abuse" as well.

Just to muddy up the waters a little bit. :) Obviously, the PSF should
follow its own lawyer's advice, but it seemed to me that the point of Mr.
Rosen's article was more to advise people releasing software to use a
license that allows them to disclaim warranties.

I personally can't see how taking the reasonable interpretation of a public
domain declaration can lead to any difficulties, but then, IANAL. I'm
surprised, however, that he didn't even touch on promissory estoppel, if
there is some reason he believes that the doctrine wouldn't apply to a
software license. Heck, I was under the impression that free copyright
licenses in general got their effect by way of promissory estoppel, since
such licenses are always one-sided promises. The GPL in particular makes
an explicit point of this, even though it doesn't use the words "promissory
estoppel". The point is that the law doesn't allow you to copy, so the
license is your defense against a charge of copyright
infringement. Therefore, even Rosen's so-called "Give it away" license is
enforceable, in the sense that the licensor should be barred from taking
action against someone taking the license at face value.

Rosen also says, "Under basic contract law, a gift cannot be enforced. The
donor can retract his gift at any time, for any reason". If this were
true, I could give you a watch for Christmas and then sue you to make you
give it back, so I'm not sure what he's getting at here.

But again, IANAL, certainly not a famous one like Mr. Rosen. I *am* most
curious to know why his article seems to imply that a promise not to sue
someone for copyright infringement isn't a valid defense against such a
suit, because that would seem to imply that *no* free software license is
valid, including the GPL or the PSF license! (Surely those "gifts" can be
retracted too, no?)