Is the GPL a copyright license or a contract under U.S. law?
Sills, Max
In this talk I will summarize the case law on the contract or license questionin the U.S. Certain obligations under the GPL may be merely contractual,meaning there are less damages and enforcement mechanisms available to aplaintiff, while other obligations may have more teeth. I will use thisanalysis to help the community think about how it might craft softwarelicenses in the future.
 How's everyone doing? I'm Max Sills. I'm the lead attorney in the open source programs office for Google. And basically we're writing a book, an open source case book. So it's open source because it's about open source but we're also soliciting help from any attorneys or anyone knowledgeable to help us do the research. We've got a lot of interesting topics that I'm going to talk about but I want to focus this presentation on a chapter that we just finished on whether an open source license, whether the violation of an open source license is contract breach or copyright infringement. Before I get into it, here are all the standard warnings. I am a licensed attorney. I'm not your attorney. This presentation is not legal advice and anything I'm going to say, they're my views, my opinions, not Google's. So please don't write a blog post about this saying that this is Google's opinion. Okay, so a little bit about my background. I take open source more transactionally although the more I interact with it, the more I kind of just by osmosis adopt the free software zealotry I think. So from a transactional background, I have to deal with open source every day. And I have to deal with it with every subsidiary company. So we're buying open source, we're selling it, we're making it, we're modifying it, we're leasing it from people, we're distributing it and we're distributing it in physical devices, we're distributing it as part of cloud software. So basically, open source touches every single piece of business that Google's engaged in now. And my efforts don't scale anymore. We have attorneys come to me every day saying I have this little open source issue in a contract, can you please review it? I have this open source issue and an acquisition, can you please review it? And this is the main problem that I face. I don't care why, just give me the answer. Just tell me what I need to do. And that's fine, like at a smaller scale, I can just say do this, do that, do this, do that. But what I find is, it's really weird but there's just not a lot of legal analysis that goes into open source counseling. There's tooling analysis, there's definitely the idea that you want to do the right thing. And I think doing the right thing, if that's all you do and you have no legal background, that's an excellent way to start doing open source compliance. Just give people the respect they ask for and try to abide as closely as possible with the terms of the license. But that's not good enough for me because I want to actually dig, I actually want to dig deeper and figure out why things are the case. Not only that but I say right here, it's okay to disagree about what licenses mean but we shouldn't be disagreeing on what the case law is, right? We shouldn't be disagreeing on what the basic facts are. So hopefully with this open source case book, if we're going to publish a few chapters and then solicit your help. Richard, I'm looking at you if you want to help out. I just want to have us, and Karen as well obviously, I just want to have us all have the same discussion basically. So with that said, here are some chapters. This is the one I'm going to be talking about today, whether an open source license is a copyright or a contract. But there's a lot of cool stuff we're going to talk about. Revocability of licenses, implied patent licenses. This is super interesting and annoying and scary for a big corporation. Is a contributor an employee? I'm not going to answer that today and hopefully I'll never have to answer that. Also, trademarks really don't get addressed. So hopefully at the end of the day, this is going to be presented in case book format. So it's not going to be another open source book telling you what to do, giving you advice because I'm really sick of doing that. I used to like it when I started because it gave me a sense of power. But now it's just incredibly exhausting to keep telling people what the truth is. What I want instead is to kind of like work together to share the same way to think about the problems. So I want to pose the cases and the questions in a real case book format. Okay, so this is what I'm going to go over today. I'm going to go over two cases, Jacobson v. Katzer and MDY Industries versus Blizzard. Versata is super important here too, but I want to keep this brief because I want to interact with everyone. So if we have time, we'll get to Versata at the end. We're going to be talking about contract damages versus copyright infringement damages. And if that doesn't like make your blood start pumping, it should because those two things are extremely different. If an open source license is just a contract between the licenseor and the licensee, then breach of that contract, you're only entitled to what's called substitute performance. Basically, you can't get a lot of money. You can't get a really good injunction. It's a really crappy copyright enforcement mechanism if all you can do is contract remedies. But if you can see copyright remedies, you can get statutory damages and fringers profits. You can have an injunction on everything that's being distributed. So for the current ways that copyrights enforced and open source licenses are enforced, it's really to people's benefit to try to always make a copyright infringement claim. We're going to focus on the difference between conditions and covenants and this idea of nexus to an enumerated right of copyright. The only background I'll give you here is let's focus on three things, the right to make copies, the right to redistribute copies, and the right to make derivative work. So those are the three things we're going to keep in mind when we say enumerated right of copyright. And in a casebook format, I might just stop the presentation and ask for volunteers to talk about it because what I really want to do is leaving you understanding what conditions and covenants are. And I want you to start applying all these different tests to open source licenses. So we kind of examine these things a little more critically. So here are the ground rules from Sun Microsystems v. Microsoft. Generally, a copyright owner who grants a non-exclusive license to use copyrighted material waves his right to sue the licensee for copyright infringement. How about that? That's a really weird ground rule and it's not something you'd expect. Right there, it says the moment you gave a license, your ability to have any claims in copyright are killed. Except if a license is limited in scope and the licensee acts outside the scope, then you can bring an action for copyright infringement. So you can think of an open source license as this box, right? And if it's not exclusive, which means you reserve the right to give this license to other people, then any activity the person does can't sue them for copyright infringement unless somehow this box is like cabin by specific language and they violated that. But we'll get into that right now. So Jacob Sinffy-Catzer. Who's heard of Jacob Sinffy-Catzer? Okay. So that's good. That's a positive step. Let's actually talk about the holding there and see if we can apply it. So there was this, Jacob Sinffy was a model railroad enthusiast and he made this open source library as part of JMRI, that was the name of his consortium, to control model trains. And he licensed it under the artistic license. So this person, so an employee of a company named Catzer downloads Jacob Sinffy-Catzer's files, incorporates that into their product. I think it's like, I think it was called the railroad commander. And then they distribute it without giving credit or without any of the requirements of the artistic license, including upstreaming modifications. The procedural history, super complex, super weird. It ended up in the federal circuit, which a copyright action shouldn't end up in the federal circuit. But this one did because there was a patent issue. Federal circuit had subject matter jurisdiction and got a bite at the copyright question. So this is where we get the holding right here. Whether a breach of licenses copyright infringement depends on whether the provision breached is a condition of the license or a covenant. Now, I've read this multiple times and I had a lot of difficulty figuring out what a covenant was and what a condition is. So let's talk about that. A covenant is a promise. Okay, so a contract is mutual promises, two mutual promises between people. A condition uses the word if as long as, okay? The court says here that the artistic license creates conditions to protect economic rights. So this is a really weird portion because I think a lot of times people just focus on the conditions versus covenants issue and they don't go into how much the court found a fundamental need to connect this to some kind of economic right of copyright. So basically, if I say you can use my software and please promise to redistribute it, that's a covenant. Okay? If you don't do that, I can only get you for contract breach. I can't really enforce it in an aggressive way against you. However, if I say here's my software and you can make derivative works, you can redistribute it, only as long as you do these things, then that's a condition. If I condition the grant of rights, then I can get at you because if you violate that condition, you're outside the scope of the license and then that's a real enforcement hook. But I'm just going to highlight this because again, it's lost. The court didn't just say that it's about conditions like, okay, because then every open source license would just be if, if, if, if, if, if, if. Like you could just litter them with conditions and then be secure in the idea that you can enforce copyright remedies. But it kept trying to go through every single element of the artistic license and tying each condition somehow to a fundamental economic right. Just keep that in the back of your head. All right, so I talked about this, um, covenants versus conditions. This comes back in a later case. Is anyone familiar with MDY v. Blizern? Oh, okay. Anyone else? Okay, just to cut, much less than Jacobson. And this is kind of what's upsetting as an open source lawyer is just, well, that's not upsetting. It's a, it's an opportunity. People know one or two cases. They haven't read them in a long time and then that's the end of it. But the idea with an open source casebook is it's constantly updated, always reflecting the most recent law. So MDY versus Blizern is a really interesting case. Has anyone ever played World of Warcraft? Okay, so more people have played World of Warcraft than know that, that's good, that's expected. Um, apparently it's a real, I used to play Ultima online, but I never played World of Warcraft. But I know from MMOs, it's a real pain to level up a beginning character. So MDY makes these bots. I'm sure you've all used these bots or at least some of you have used these bots to just grind the character at the beginning so their level goes up. Blizzard hated this because they thought it was reducing the value of the game. I mean, they structured it in a very specific way. They sued MDY for contributory copyright infringement. Now, I don't want to get into the weeds too much, but you can only find contributory copyright infringement if the person who did the thing is guilty of direct copyright infringement. So the question is, all right, if you run a robot to grind some World of Warcraft levels and you violate the terms of the EULA, are you committing copyright infringement? It's a weird question. The court was, the court said, absolutely not. No. So here we have the holding from MDY. The potential for infringement exists only when the action of the licensee exceeds the license's scope, but then really zoom in on here in a manner that implicates one of the licenseeer's exclusive rights of copyright. For a licenseeer's violation to be infringement, there has to be this nexus between the condition and one of the licenseeer's exclusive rights. So even if you make the argument that Blizzard didn't sell World of Warcraft but merely licensed it to people, Blizzard has a copyright right to grant people a license to copy the software, to make derivative works of the software, but nowhere in any copyright law does it say you can't use bots. So the court found that that failure of that condition meant you couldn't sue players for copyright infringement here. I think I'm okay on time, so I'll just add another wrinkle to this before we go into discussion, like open discussion with the audience. So AmeriPrize versus Fasada, it's a very recent case in the Western District of Texas. It's a really cool case, but it kind of deals with this at a slightly different angle. So there's this idea in United States federal law called preemption. It says if you have a state law claim and a federal law claim, the federal law claim may preempt the state law claim, meaning that federal law trumps state law. So the question there is, is an open source license a contract or does it sound in copyright? And you've got to go read Versata because it's a fundamental reading if you're into this sort of thing. But it held that for the purposes of preemption, the GPL was not preempted by copyright. So all that means is that you might be able to sue over the GPL in copyright, but you can't just go automatically say that there's only copyright issues at issue in the GPL. And the reason for that kind of lines up with the tests in MDY and the test in Jacobson. It lines up because it says, okay, first of all, there's preemption if the thing you're talking about is a copyright right. But also, they have this thing called like a next element test or a supplemental element test. The court held in Versata, the GPL has something extra, something extra that we don't like because it's this extra thing that's supplementary to copyright that means that we can't just say it's preempted. Okay. So that said, let's talk about this. Let's analyze some common open source licenses with this lens, with this Jacobson test and this MDY test. So first of all, MIT, right here, subject to the following conditions. So the court in Jacobson was really persuaded by using the word conditions. We know immediately that that is going to really get them going. What do people think? Is this a covenant or a condition? Does that, yeah, I'm just opening it up. So the above copyright notice and this permission notice shall be included in all copies of the software. Covenant or condition? Wait, wait, wait, wait, wait, wait. The line above says subject to the following conditions, which to me suggests it might be a condition. Yes. You know. Round of applause. Wonderful. Oh, let me go back. Yes. So that is a, well that's the exact reasoning that the court in Jacobson would use. They were very persuaded by the word condition. So that's the Jacobson test. Now let's spice it up. The MDY test, is there an essential nexus between this condition and the license or one of the license or is enumerated rights of copyright? That's a very, yeah, it's a puzzle. You have a puzzled look on your face. It's a weird question. So let me rephrase it. We said the essential rights of copyright boiled down to copying, being able to copy something, redistribute it or make derivative works. Is this condition connected to one of those three things? Wait, did you call on someone? Yeah, sure. Yeah. I was going to say, wait, wait, wait, wait, wait. I was going to take it a different direction and say this example shows why MDY is bullshit, which has been my view of MDY. It took a ridiculously simplistic view of, it completely falls apart under any sort of, any kind of, under many, many licenses, even not counting open source licenses. So to me it's kind of a, just a wrong decision. So let me address that for a second. I love that. The concept that MDY is bullshit, that's extremely helpful because at least we're both talking about MDY being something that we have to look at. And so, yeah, I might agree with you, but the pushback I have there is, you say that, but I think it really tracks with Jacobson actually because the essential nexus to one of the enumerated rights of copyright, I'm persuaded, I see the analogy to an economic right like the court Jacobson was talking about. Right. So again, it's all just rhetoric. So, and this I pointed this out, yeah, the yesterday with the Creative Commons licenses is the one commonalities attribution, which is not, which is not one of the exclusive rights of copyright. And yet we accept that as a very valid, I also, I also prefer to think of it not as the economic right, which is what Jacobson did, but it's just fricking consideration. It's nothing more difficult than consideration. So then, then when you look at it as consideration versus an economic right, then it's very simple. Yes, there's consideration. Tell me who the author is. That's the only thing I'm getting out of this grant is acknowledgement of my authorship. And that's very significant consideration. So I, then I guess I reject both cases. So, so, so, I guess in this, it would be a copyright, excuse me, a contract and not a copyright license, senior interpretation, the MIT license because you're talking about copyright. It's copyright license. Wait, wait, wait. Well, certainly I'm, yeah. Here, I'll take, well, yeah, and then I'll have to. I mean, do we want to go down the fact that, that I also kind of disagree with this whole, this world that there's sort of this concept that there's a license is simply, is simply a form of a contract. I don't think a license is a whole different sort of unicorn. It's just a unilateral license. Yeah. So, so then that's why I said, and it's, and it's a copyright license. I mean, it's a, it's a contract. You get to use my copyright in exchange for you giving me attribution. There is, there's, there's consideration for both parties. I just don't see that, and maybe I'm part of it is I just don't see the point of sort of this, this copyright versus contract question altogether. I can reject the premise of the talk. Let me keep going and I'll, I'll have some. I'll have some time for questions. Just give, just give me one second. So, yeah, that makes sense. I don't think we should necessarily divide licenses from copyright. I'm just, I'm just actually presenting the cases, talking about the whole things and saying like, no, don't, don't shut up. Collaborate with me and let's, yeah, let me hear your dissent in a casebook. So, we can ask the same question. Let's go to the really interesting things. The anti-teluization provision in the GPLB 3. So, yes, under Jacobson, this is conditional, right? Because the GPLB 3 says you can use this as long as you follow these conditions. But, and Pam, I think I know what you're going to say here, but I see less of a connection to a right of copyright here. In fact, I see no connection to a right of copyright. So, just to, just to conclude and then we can have a little bit more open discussion. A lot of license obligations can be fine, can be found to be merely contractual under all the available cases we have on the topic. They don't tie directly to an enumerated right of copyright. They fill the extra element test in Versata for preemption. But I want to end maybe on a more hopeful note, which is just dovetailing with Bradley's keynote yesterday. So, lawsuits are a tactic, right, to advance free software. They're not the end goal. Most of us don't enjoy law and lawsuits. I love lawsuits. I'm obsessed with law and lawsuits. But if we analyze this, then we, we just going to have to change our tactics, right? Because if our, if the tactics of free software depend on making copyright infringement allegations and getting huge returns like, like McCarty is kind of trolling, then that might need to be changed. But if the point is, and I say this at the end, the point is really, got community norms and pressure and other alternative regimes besides just copyright infringement lawsuits. Like, if you're not just trying to make millions and millions of dollars, there's a lot of ways to achieve the goals of free software. But at least I want to situate the tactics we use in actual case law. So, so that's it. And you can email me at xam at Google.com if you want to participate in the casebook. And I have a couple minutes. So, yeah, some questions? I'm really like your idea of having an open casebook. It gives me a sense that even though I'm not a lawyer, maybe as a legal geek, I could participate in some way or if the very least learn more about the findings and the understanding. And then of course I really like what Pam did. And it made me think, could this, would this, do you want this to be a collaborative place for us to share that kind of dissent and, and in discussion? Yes, absolutely. And, to, more power too. I should say I should have given credit. So, Dash over now is my colleague in the Up and Source Programs Office. He's a brilliant attorney. We argue constantly. And that, that argument has formed the substance of the casebook. The way that's presented, yes, we're going to invite lawyers, but we're also going to invite just any geeks that want to contribute. So the, the, the format is just going to be case excerpts and then discussion. Case excerpts and discussion. So, there's not going to be any real conclusions except summarizing the whole things of cases. So everyone's welcome to submit cases that think are relevant for the particular portions. And if you have a dissent, that'll just go in the discussion. Because the point is to have a unified document that kind of trains up everyone's mind. And, and we, we want them to see the world the way we have learned to see it over time. Questions? Yeah. Yeah. So, I get the impression this is going to be focused very much on U.S. law. Is that right? Ah, great. Great. So, I, I just wanted to follow up on that. Now, I'm, I'm not a lawyer. I'm an occasional litigant with some success. In U.K. law, there's a thing called the Contracts, Rights of Third Parties Act, which is kind of interesting. If you read the GPL with that act in mind and you think the GPL is a contract and not just a license, it's possible that end users might have the right to sue for compliance. And nobody, I mean, nobody that I know who has like been seriously involved in GPL enforcement is familiar enough, as far as I can tell, with U.K. law, to even have properly considered whether that's true or not. Yeah. That's a fascinating point. So, I, I think there would be a privity analysis that would be a little bit weird. Go ahead. Do you mind if I respond to that point directly? Please, go ahead. I'm, I'm in English. Are you okay? Yeah. Sorry. Just a little quickly. Yes. No, no, no, no. Yeah, yeah, I appreciate that. Go for it. Yeah. No, I'm, I'm, I'm an English lawyer. I think that's a really good point. But I think it's possible to analyze the GPL as purely being a bare license, in which case the Contract Rights of Third Parties Act doesn't apply. And the reasoning behind that is equivalent to the reasoning in a case called Robin around Classic FM, which I don't have enough time to explain to anyone. So, if you want to talk to me about it later, I'm happy to have a chat with you. Yeah. So, we're going to start with a focus on American law, just because we want to get the thing off the ground. But I definitely want to tackle European specific issues like moral rights. So, when, when a US copyright attorney, open source attorney hears moral rights, they just like put their fingers in their ears. This is the last question. But, yeah, please. So, I, I think your, your initiative to, for this open case book is, is, is really awesome. Cool. So, what's about extending that to discussions on the text of the licenses? So, because I'm, so I'm, I'm working day and night on open source software and their licensing. And I work a lot with lawyers, which most of the time, even though I'm not lawyers, I have to educate on the topic. Right. I think some reference discussion on case books going to be already something that's going to make their life much, much easier. And my life much easier. I think the same kind of discussion on the common open source licenses, which are scattered around would be a great, great, great thing to do, I think. Right. So, let me address that specifically, because I disagree with you a little bit. Because I think there's already an abundance of everyone sounding off on what they think an open source license means. Lawyer or not lawyer? I think what we act, what we really need though, is to agree and discuss the cases and to just get the questions flowing so that we can actually see what the state of the law is. So, if there were to be a discussion of open source licenses, we do it in such a way that they'd be grounded in the particular case and the particular thing. So, what I don't want to have is more facts that people start citing to say, this is what it means, this is what it means. I want people to think instead of to provide them conclusions so that they can short circuit actually thinking about the issues. Thank you.
 How's everyone doing? I'm Max Sills. I'm the lead attorney in the open source programs  office for Google. And basically we're writing a book, an open source case book. So it's  open source because it's about open source but we're also soliciting help from any attorneys  or anyone knowledgeable to help us do the research. We've got a lot of interesting topics  that I'm going to talk about but I want to focus this presentation on a chapter that  we just finished on whether an open source license, whether the violation of an open  source license is contract breach or copyright infringement. Before I get into it, here are  all the standard warnings. I am a licensed attorney. I'm not your attorney. This presentation  is not legal advice and anything I'm going to say, they're my views, my opinions, not  Google's. So please don't write a blog post about this saying that this is Google's opinion.  Okay, so a little bit about my background. I take open source more transactionally although  the more I interact with it, the more I kind of just by osmosis adopt the free software  zealotry I think. So from a transactional background, I have to deal with open source  every day. And I have to deal with it with every subsidiary company. So we're buying  open source, we're selling it, we're making it, we're modifying it, we're leasing it from  people, we're distributing it and we're distributing it in physical devices, we're distributing  it as part of cloud software. So basically, open source touches every single piece of business  that Google's engaged in now. And my efforts don't scale anymore. We have attorneys come  to me every day saying I have this little open source issue in a contract, can you please  review it? I have this open source issue and an acquisition, can you please review it? And  this is the main problem that I face. I don't care why, just give me the answer. Just tell  me what I need to do. And that's fine, like at a smaller scale, I can just say do this,  do that, do this, do that. But what I find is, it's really weird but there's just not  a lot of legal analysis that goes into open source counseling. There's tooling analysis,  there's definitely the idea that you want to do the right thing. And I think doing the  right thing, if that's all you do and you have no legal background, that's an excellent  way to start doing open source compliance. Just give people the respect they ask for  and try to abide as closely as possible with the terms of the license. But that's not good  enough for me because I want to actually dig, I actually want to dig deeper and figure out  why things are the case. Not only that but I say right here, it's okay to disagree about  what licenses mean but we shouldn't be disagreeing on what the case law is, right? We shouldn't  be disagreeing on what the basic facts are. So hopefully with this open source case book,  if we're going to publish a few chapters and then solicit your help. Richard, I'm looking  at you if you want to help out. I just want to have us, and Karen as well obviously, I  just want to have us all have the same discussion basically. So with that said, here are some  chapters. This is the one I'm going to be talking about today, whether an open source  license is a copyright or a contract. But there's a lot of cool stuff we're going to  talk about. Revocability of licenses, implied patent licenses. This is super interesting  and annoying and scary for a big corporation. Is a contributor an employee? I'm not going  to answer that today and hopefully I'll never have to answer that. Also, trademarks really  don't get addressed. So hopefully at the end of the day, this is going to be presented  in case book format. So it's not going to be another open source book telling you what  to do, giving you advice because I'm really sick of doing that. I used to like it when  I started because it gave me a sense of power. But now it's just incredibly exhausting to  keep telling people what the truth is. What I want instead is to kind of like work together  to share the same way to think about the problems. So I want to pose the cases and the questions  in a real case book format. Okay, so this is what I'm going to go over today. I'm going  to go over two cases, Jacobson v. Katzer and MDY Industries versus Blizzard. Versata is  super important here too, but I want to keep this brief because I want to interact with  everyone. So if we have time, we'll get to Versata at the end. We're going to be talking  about contract damages versus copyright infringement damages. And if that doesn't like make your  blood start pumping, it should because those two things are extremely different. If an  open source license is just a contract between the licenseor and the licensee, then breach  of that contract, you're only entitled to what's called substitute performance. Basically,  you can't get a lot of money. You can't get a really good injunction. It's a really crappy  copyright enforcement mechanism if all you can do is contract remedies. But if you can  see copyright remedies, you can get statutory damages and fringers profits. You can have  an injunction on everything that's being distributed. So for the current ways that copyrights enforced  and open source licenses are enforced, it's really to people's benefit to try to always  make a copyright infringement claim. We're going to focus on the difference between  conditions and covenants and this idea of nexus to an enumerated right of copyright.  The only background I'll give you here is let's focus on three things, the right to  make copies, the right to redistribute copies, and the right to make derivative work. So  those are the three things we're going to keep in mind when we say enumerated right  of copyright. And in a casebook format, I might just stop the presentation and ask for  volunteers to talk about it because what I really want to do is leaving you understanding  what conditions and covenants are. And I want you to start applying all these different  tests to open source licenses. So we kind of examine these things a little more critically.  So here are the ground rules from Sun Microsystems v. Microsoft. Generally, a copyright owner  who grants a non-exclusive license to use copyrighted material waves his right to sue  the licensee for copyright infringement. How about that? That's a really weird ground  rule and it's not something you'd expect. Right there, it says the moment you gave a  license, your ability to have any claims in copyright are killed. Except if a license  is limited in scope and the licensee acts outside the scope, then you can bring an action  for copyright infringement. So you can think of an open source license as this box, right?  And if it's not exclusive, which means you reserve the right to give this license to  other people, then any activity the person does can't sue them for copyright infringement  unless somehow this box is like cabin by specific language and they violated that. But we'll  get into that right now. So Jacob Sinffy-Catzer. Who's heard of Jacob Sinffy-Catzer? Okay.  So that's good. That's a positive step. Let's actually talk about the holding there and  see if we can apply it. So there was this, Jacob Sinffy was a model railroad enthusiast  and he made this open source library as part of JMRI, that was the name of his consortium,  to control model trains. And he licensed it under the artistic license. So this person,  so an employee of a company named Catzer downloads Jacob Sinffy-Catzer's files, incorporates  that into their product. I think it's like, I think it was called the railroad commander.  And then they distribute it without giving credit or without any of the requirements  of the artistic license, including upstreaming modifications. The procedural history, super  complex, super weird. It ended up in the federal circuit, which a copyright action shouldn't  end up in the federal circuit. But this one did because there was a patent issue. Federal  circuit had subject matter jurisdiction and got a bite at the copyright question. So  this is where we get the holding right here. Whether a breach of licenses copyright infringement  depends on whether the provision breached is a condition of the license or a covenant.  Now, I've read this multiple times and I had a lot of difficulty figuring out what a covenant  was and what a condition is. So let's talk about that. A covenant is a promise. Okay,  so a contract is mutual promises, two mutual promises between people. A condition uses  the word if as long as, okay? The court says here that the artistic license creates conditions  to protect economic rights. So this is a really weird portion because I think a lot of times  people just focus on the conditions versus covenants issue and they don't go into how  much the court found a fundamental need to connect this to some kind of economic right  of copyright. So basically, if I say you can use my software and please promise to redistribute  it, that's a covenant. Okay? If you don't do that, I can only get you for contract breach.  I can't really enforce it in an aggressive way against you. However, if I say here's  my software and you can make derivative works, you can redistribute it, only as long as you  do these things, then that's a condition. If I condition the grant of rights, then I  can get at you because if you violate that condition, you're outside the scope of the  license and then that's a real enforcement hook. But I'm just going to highlight this  because again, it's lost. The court didn't just say that it's about conditions like,  okay, because then every open source license would just be if, if, if, if, if, if, if.  Like you could just litter them with conditions and then be secure in the idea that you can  enforce copyright remedies. But it kept trying to go through every single element of the artistic  license and tying each condition somehow to a fundamental economic right. Just keep that  in the back of your head. All right, so I talked about this, um, covenants versus conditions.  This comes back in a later case. Is anyone familiar with MDY v. Blizern? Oh, okay. Anyone  else? Okay, just to cut, much less than Jacobson. And this is kind of what's upsetting as an  open source lawyer is just, well, that's not upsetting. It's a, it's an opportunity. People  know one or two cases. They haven't read them in a long time and then that's the end of  it. But the idea with an open source casebook is it's constantly updated, always reflecting  the most recent law. So MDY versus Blizern is a really interesting case. Has anyone ever  played World of Warcraft? Okay, so more people have played World of Warcraft than know that,  that's good, that's expected. Um, apparently it's a real, I used to play Ultima online,  but I never played World of Warcraft. But I know from MMOs, it's a real pain to level  up a beginning character. So MDY makes these bots. I'm sure you've all used these bots  or at least some of you have used these bots to just grind the character at the beginning  so their level goes up. Blizzard hated this because they thought it was reducing the value  of the game. I mean, they structured it in a very specific way. They sued MDY for contributory  copyright infringement. Now, I don't want to get into the weeds too much, but you can  only find contributory copyright infringement if the person who did the thing is guilty  of direct copyright infringement. So the question is, all right, if you run a robot to grind  some World of Warcraft levels and you violate the terms of the EULA, are you committing  copyright infringement? It's a weird question. The court was, the court said, absolutely  not. No. So here we have the holding from MDY. The potential for infringement exists  only when the action of the licensee exceeds the license's scope, but then really zoom  in on here in a manner that implicates one of the licenseeer's exclusive rights of copyright.  For a licenseeer's violation to be infringement, there has to be this nexus between the condition  and one of the licenseeer's exclusive rights. So even if you make the argument that Blizzard  didn't sell World of Warcraft but merely licensed it to people, Blizzard has a copyright right  to grant people a license to copy the software, to make derivative works of the software,  but nowhere in any copyright law does it say you can't use bots. So the court found  that that failure of that condition meant you couldn't sue players for copyright infringement  here. I think I'm okay on time, so I'll just add another wrinkle to this before we go  into discussion, like open discussion with the audience. So AmeriPrize versus Fasada,  it's a very recent case in the Western District of Texas. It's a really cool case, but it  kind of deals with this at a slightly different angle. So there's this idea in United States  federal law called preemption. It says if you have a state law claim and a federal law claim,  the federal law claim may preempt the state law claim, meaning that federal law trumps  state law. So the question there is, is an open source license a contract or does it  sound in copyright? And you've got to go read Versata because it's a fundamental reading  if you're into this sort of thing. But it held that for the purposes of preemption,  the GPL was not preempted by copyright. So all that means is that you might be able to  sue over the GPL in copyright, but you can't just go automatically say that there's only  copyright issues at issue in the GPL. And the reason for that kind of lines up with  the tests in MDY and the test in Jacobson. It lines up because it says, okay, first of  all, there's preemption if the thing you're talking about is a copyright right. But also,  they have this thing called like a next element test or a supplemental element test. The court  held in Versata, the GPL has something extra, something extra that we don't like because  it's this extra thing that's supplementary to copyright that means that we can't just  say it's preempted. Okay. So that said, let's talk about this. Let's analyze some common  open source licenses with this lens, with this Jacobson test and this MDY test. So first  of all, MIT, right here, subject to the following conditions. So the court in Jacobson was really  persuaded by using the word conditions. We know immediately that that is going to really  get them going. What do people think? Is this a covenant or a condition? Does that, yeah,  I'm just opening it up. So the above copyright notice and this permission notice shall be  included in all copies of the software. Covenant or condition?  Wait, wait, wait, wait, wait, wait. The line above says subject to the following conditions,  which to me suggests it might be a condition. Yes. You know.  Round of applause. Wonderful. Oh, let me go back. Yes. So that is a, well that's the  exact reasoning that the court in Jacobson would use. They were very persuaded by the  word condition. So that's the Jacobson test. Now let's spice it up. The MDY test, is there  an essential nexus between this condition and the license or one of the license or  is enumerated rights of copyright? That's a very, yeah, it's a puzzle. You have a puzzled  look on your face. It's a weird question. So let me rephrase it. We said the essential  rights of copyright boiled down to copying, being able to copy something, redistribute  it or make derivative works. Is this condition connected to one of those three things?  Wait, did you call on someone? Yeah, sure. Yeah.  I was going to say, wait, wait, wait, wait, wait.  I was going to take it a different direction and say this example shows why MDY is bullshit,  which has been my view of MDY. It took a ridiculously simplistic view of, it completely falls apart  under any sort of, any kind of, under many, many licenses, even not counting open source  licenses. So to me it's kind of a, just a wrong decision.  So let me address that for a second. I love that. The concept that MDY is bullshit, that's  extremely helpful because at least we're both talking about MDY being something that we  have to look at. And so, yeah, I might agree with you, but the pushback I have there is,  you say that, but I think it really tracks with Jacobson actually because the essential  nexus to one of the enumerated rights of copyright, I'm persuaded, I see the analogy to an economic  right like the court Jacobson was talking about.  Right. So again, it's all just rhetoric. So, and this I pointed this out, yeah, the  yesterday with the Creative Commons licenses is the one commonalities attribution, which  is not, which is not one of the exclusive rights of copyright. And yet we accept that  as a very valid, I also, I also prefer to think of it not as the economic right, which  is what Jacobson did, but it's just fricking consideration. It's nothing more difficult  than consideration. So then, then when you look at it as consideration versus an economic  right, then it's very simple. Yes, there's consideration. Tell me who the author is.  That's the only thing I'm getting out of this grant is acknowledgement of my authorship.  And that's very significant consideration. So I, then I guess I reject both cases.  So, so, so, I guess in this, it would be a copyright, excuse me, a contract and not  a copyright license, senior interpretation, the MIT license because you're talking about  copyright. It's copyright license. Wait, wait, wait. Well, certainly I'm, yeah. Here,  I'll take, well, yeah, and then I'll have to. I mean, do we want to go down the fact  that, that I also kind of disagree with this whole, this world that there's sort of this  concept that there's a license is simply, is simply a form of a contract. I don't think  a license is a whole different sort of unicorn. It's just a unilateral license. Yeah. So,  so then that's why I said, and it's, and it's a copyright license. I mean, it's a,  it's a contract. You get to use my copyright in exchange for you giving me attribution.  There is, there's, there's consideration for both parties. I just don't see that, and  maybe I'm part of it is I just don't see the point of sort of this, this copyright versus  contract question altogether. I can reject the premise of the talk.  Let me keep going and I'll, I'll have some. I'll have some time for questions. Just give,  just give me one second. So, yeah, that makes sense. I don't think we should necessarily  divide licenses from copyright. I'm just, I'm just actually presenting the cases, talking  about the whole things and saying like, no, don't, don't shut up. Collaborate with me  and let's, yeah, let me hear your dissent in a casebook. So, we can ask the same question.  Let's go to the really interesting things. The anti-teluization provision in the GPLB  3. So, yes, under Jacobson, this is conditional, right? Because the GPLB 3 says you can use  this as long as you follow these conditions. But, and Pam, I think I know what you're going  to say here, but I see less of a connection to a right of copyright here. In fact, I see  no connection to a right of copyright. So, just to, just to conclude and then we can  have a little bit more open discussion. A lot of license obligations can be fine, can  be found to be merely contractual under all the available cases we have on the topic.  They don't tie directly to an enumerated right of copyright. They fill the extra element  test in Versata for preemption. But I want to end maybe on a more hopeful note, which  is just dovetailing with Bradley's keynote yesterday. So, lawsuits are a tactic, right,  to advance free software. They're not the end goal. Most of us don't enjoy law and lawsuits.  I love lawsuits. I'm obsessed with law and lawsuits. But if we analyze this, then we,  we just going to have to change our tactics, right? Because if our, if the tactics of free  software depend on making copyright infringement allegations and getting huge returns like,  like McCarty is kind of trolling, then that might need to be changed. But if the point  is, and I say this at the end, the point is really, got community norms and pressure and  other alternative regimes besides just copyright infringement lawsuits. Like, if you're not  just trying to make millions and millions of dollars, there's a lot of ways to achieve  the goals of free software. But at least I want to situate the tactics we use in actual  case law. So, so that's it. And you can email me at xam at Google.com if you want to participate  in the casebook. And I have a couple minutes. So, yeah, some questions?  I'm really like your idea of having an open casebook. It gives me a sense that even though  I'm not a lawyer, maybe as a legal geek, I could participate in some way or if the very  least learn more about the findings and the understanding. And then of course I really  like what Pam did. And it made me think, could this, would this, do you want this to be a  collaborative place for us to share that kind of dissent and, and in discussion?  Yes, absolutely. And, to, more power too.  I should say I should have given credit. So, Dash over now is my colleague in the Up and  Source Programs Office. He's a brilliant attorney. We argue constantly. And that, that argument  has formed the substance of the casebook. The way that's presented, yes, we're going  to invite lawyers, but we're also going to invite just any geeks that want to contribute.  So the, the, the format is just going to be case excerpts and then discussion. Case excerpts  and discussion. So, there's not going to be any real conclusions except summarizing the  whole things of cases. So everyone's welcome to submit cases that think are relevant for  the particular portions. And if you have a dissent, that'll just go in the discussion.  Because the point is to have a unified document that kind of trains up everyone's mind. And,  and we, we want them to see the world the way we have learned to see it over time. Questions?  Yeah.  Yeah. So, I get the impression this is going to be focused very much on U.S. law. Is that  right?  Ah, great. Great.  So, I, I just wanted to follow up on that. Now, I'm, I'm not a lawyer. I'm an occasional  litigant with some success. In U.K. law, there's a thing called the Contracts, Rights of Third  Parties Act, which is kind of interesting. If you read the GPL with that act in mind  and you think the GPL is a contract and not just a license, it's possible that end users  might have the right to sue for compliance. And nobody, I mean, nobody that I know who  has like been seriously involved in GPL enforcement is familiar enough, as far as I can tell,  with U.K. law, to even have properly considered whether that's true or not.  Yeah. That's a fascinating point. So, I, I think there would be a privity analysis that  would be a little bit weird. Go ahead.  Do you mind if I respond to that point directly?  Please, go ahead.  I'm, I'm in English.  Are you okay?  Yeah. Sorry.  Just a little quickly.  Yes. No, no, no, no. Yeah, yeah, I appreciate that.  Go for it.  Yeah. No, I'm, I'm, I'm an English lawyer. I think that's a really good point. But I  think it's possible to analyze the GPL as purely being a bare license, in which case  the Contract Rights of Third Parties Act doesn't apply. And the reasoning behind that is equivalent  to the reasoning in a case called Robin around Classic FM, which I don't have enough time  to explain to anyone. So, if you want to talk to me about it later, I'm happy to have a  chat with you.  Yeah. So, we're going to start with a focus on American law, just because we want to get  the thing off the ground. But I definitely want to tackle European specific issues like  moral rights. So, when, when a US copyright attorney, open source attorney hears moral  rights, they just like put their fingers in their ears.  This is the last question.  But, yeah, please.  So, I, I think your, your initiative to, for this open case book is, is, is really awesome.  Cool.  So, what's about extending that to discussions on the text of the licenses?  So, because I'm, so I'm, I'm working day and night on open source software and their  licensing. And I work a lot with lawyers, which most of the time, even though I'm not  lawyers, I have to educate on the topic.  Right.  I think some reference discussion on case books going to be already something that's going  to make their life much, much easier. And my life much easier. I think the same kind  of discussion on the common open source licenses, which are scattered around would be a great,  great, great thing to do, I think.  Right. So, let me address that specifically, because I disagree with you a little bit.  Because I think there's already an abundance of everyone sounding off on what they think  an open source license means. Lawyer or not lawyer?  I think what we act, what we really need though, is to agree and discuss the cases and to just  get the questions flowing so that we can actually see what the state of the law is.  So, if there were to be a discussion of open source licenses, we do it in such a way that  they'd be grounded in the particular case and the particular thing. So, what I don't  want to have is more facts that people start citing to say, this is what it means, this  is what it means. I want people to think instead of to provide them conclusions so that they  can short circuit actually thinking about the issues.  Thank you.
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How's everyone doing? I'm Max Sills. I'm the lead attorney in the open source programs office for Google. And basically we're writing a book, an open source case book. So it's open source because it's about open source but we're also soliciting help from any attorneys or anyone knowledgeable to help us do the research. We've got a lot of interesting topics that I'm going to talk about but I want to focus this presentation on a chapter that we just finished on whether an open source license, whether the violation of an open source license is contract breach or copyright infringement. Before I get into it, here are all the standard warnings. I am a licensed attorney. I'm not your attorney. This presentation is not legal advice and anything I'm going to say, they're my views, my opinions, not Google's. So please don't write a blog post about this saying that this is Google's opinion. Okay, so a little bit about my background. I take open source more transactionally although the more I interact with it, the more I kind of just by osmosis adopt the free software zealotry I think. So from a transactional background, I have to deal with open source every day. And I have to deal with it with every subsidiary company. So we're buying open source, we're selling it, we're making it, we're modifying it, we're leasing it from people, we're distributing it and we're distributing it in physical devices, we're distributing it as part of cloud software. So basically, open source touches every single piece of business that Google's engaged in now. And my efforts don't scale anymore. We have attorneys come to me every day saying I have this little open source issue in a contract, can you please review it? I have this open source issue and an acquisition, can you please review it? And this is the main problem that I face. I don't care why, just give me the answer. Just tell me what I need to do. And that's fine, like at a smaller scale, I can just say do this, do that, do this, do that. But what I find is, it's really weird but there's just not a lot of legal analysis that goes into open source counseling. There's tooling analysis, there's definitely the idea that you want to do the right thing. And I think doing the right thing, if that's all you do and you have no legal background, that's an excellent way to start doing open source compliance. Just give people the respect they ask for and try to abide as closely as possible with the terms of the license. But that's not good enough for me because I want to actually dig, I actually want to dig deeper and figure out why things are the case. Not only that but I say right here, it's okay to disagree about what licenses mean but we shouldn't be disagreeing on what the case law is, right? We shouldn't be disagreeing on what the basic facts are. So hopefully with this open source case book, if we're going to publish a few chapters and then solicit your help. Richard, I'm looking at you if you want to help out. I just want to have us, and Karen as well obviously, I just want to have us all have the same discussion basically. So with that said, here are some chapters. This is the one I'm going to be talking about today, whether an open source license is a copyright or a contract. But there's a lot of cool stuff we're going to talk about. Revocability of licenses, implied patent licenses. This is super interesting and annoying and scary for a big corporation. Is a contributor an employee? I'm not going to answer that today and hopefully I'll never have to answer that. Also, trademarks really don't get addressed. So hopefully at the end of the day, this is going to be presented in case book format. So it's not going to be another open source book telling you what to do, giving you advice because I'm really sick of doing that. I used to like it when I started because it gave me a sense of power. But now it's just incredibly exhausting to keep telling people what the truth is. What I want instead is to kind of like work together to share the same way to think about the problems. So I want to pose the cases and the questions in a real case book format. Okay, so this is what I'm going to go over today. I'm going to go over two cases, Jacobson v. Katzer and MDY Industries versus Blizzard. Versata is super important here too, but I want to keep this brief because I want to interact with everyone. So if we have time, we'll get to Versata at the end. We're going to be talking about contract damages versus copyright infringement damages. And if that doesn't like make your blood start pumping, it should because those two things are extremely different. If an open source license is just a contract between the licenseor and the licensee, then breach of that contract, you're only entitled to what's called substitute performance. Basically, you can't get a lot of money. You can't get a really good injunction. It's a really crappy copyright enforcement mechanism if all you can do is contract remedies. But if you can see copyright remedies, you can get statutory damages and fringers profits. You can have an injunction on everything that's being distributed. So for the current ways that copyrights enforced and open source licenses are enforced, it's really to people's benefit to try to always make a copyright infringement claim. We're going to focus on the difference between conditions and covenants and this idea of nexus to an enumerated right of copyright. The only background I'll give you here is let's focus on three things, the right to make copies, the right to redistribute copies, and the right to make derivative work. So those are the three things we're going to keep in mind when we say enumerated right of copyright. And in a casebook format, I might just stop the presentation and ask for volunteers to talk about it because what I really want to do is leaving you understanding what conditions and covenants are. And I want you to start applying all these different tests to open source licenses. So we kind of examine these things a little more critically. So here are the ground rules from Sun Microsystems v. Microsoft. Generally, a copyright owner who grants a non-exclusive license to use copyrighted material waves his right to sue the licensee for copyright infringement. How about that? That's a really weird ground rule and it's not something you'd expect. Right there, it says the moment you gave a license, your ability to have any claims in copyright are killed. Except if a license is limited in scope and the licensee acts outside the scope, then you can bring an action for copyright infringement. So you can think of an open source license as this box, right? And if it's not exclusive, which means you reserve the right to give this license to other people, then any activity the person does can't sue them for copyright infringement unless somehow this box is like cabin by specific language and they violated that. But we'll get into that right now. So Jacob Sinffy-Catzer. Who's heard of Jacob Sinffy-Catzer? Okay. So that's good. That's a positive step. Let's actually talk about the holding there and see if we can apply it. So there was this, Jacob Sinffy was a model railroad enthusiast and he made this open source library as part of JMRI, that was the name of his consortium, to control model trains. And he licensed it under the artistic license. So this person, so an employee of a company named Catzer downloads Jacob Sinffy-Catzer's files, incorporates that into their product. I think it's like, I think it was called the railroad commander. And then they distribute it without giving credit or without any of the requirements of the artistic license, including upstreaming modifications. The procedural history, super complex, super weird. It ended up in the federal circuit, which a copyright action shouldn't end up in the federal circuit. But this one did because there was a patent issue. Federal circuit had subject matter jurisdiction and got a bite at the copyright question. So this is where we get the holding right here. Whether a breach of licenses copyright infringement depends on whether the provision breached is a condition of the license or a covenant. Now, I've read this multiple times and I had a lot of difficulty figuring out what a covenant was and what a condition is. So let's talk about that. A covenant is a promise. Okay, so a contract is mutual promises, two mutual promises between people. A condition uses the word if as long as, okay? The court says here that the artistic license creates conditions to protect economic rights. So this is a really weird portion because I think a lot of times people just focus on the conditions versus covenants issue and they don't go into how much the court found a fundamental need to connect this to some kind of economic right of copyright. So basically, if I say you can use my software and please promise to redistribute it, that's a covenant. Okay? If you don't do that, I can only get you for contract breach. I can't really enforce it in an aggressive way against you. However, if I say here's my software and you can make derivative works, you can redistribute it, only as long as you do these things, then that's a condition. If I condition the grant of rights, then I can get at you because if you violate that condition, you're outside the scope of the license and then that's a real enforcement hook. But I'm just going to highlight this because again, it's lost. The court didn't just say that it's about conditions like, okay, because then every open source license would just be if, if, if, if, if, if, if. Like you could just litter them with conditions and then be secure in the idea that you can enforce copyright remedies. But it kept trying to go through every single element of the artistic license and tying each condition somehow to a fundamental economic right. Just keep that in the back of your head. All right, so I talked about this, um, covenants versus conditions. This comes back in a later case. Is anyone familiar with MDY v. Blizern? Oh, okay. Anyone else? Okay, just to cut, much less than Jacobson. And this is kind of what's upsetting as an open source lawyer is just, well, that's not upsetting. It's a, it's an opportunity. People know one or two cases. They haven't read them in a long time and then that's the end of it. But the idea with an open source casebook is it's constantly updated, always reflecting the most recent law. So MDY versus Blizern is a really interesting case. Has anyone ever played World of Warcraft? Okay, so more people have played World of Warcraft than know that, that's good, that's expected. Um, apparently it's a real, I used to play Ultima online, but I never played World of Warcraft. But I know from MMOs, it's a real pain to level up a beginning character. So MDY makes these bots. I'm sure you've all used these bots or at least some of you have used these bots to just grind the character at the beginning so their level goes up. Blizzard hated this because they thought it was reducing the value of the game. I mean, they structured it in a very specific way. They sued MDY for contributory copyright infringement. Now, I don't want to get into the weeds too much, but you can only find contributory copyright infringement if the person who did the thing is guilty of direct copyright infringement. So the question is, all right, if you run a robot to grind some World of Warcraft levels and you violate the terms of the EULA, are you committing copyright infringement? It's a weird question. The court was, the court said, absolutely not. No. So here we have the holding from MDY. The potential for infringement exists only when the action of the licensee exceeds the license's scope, but then really zoom in on here in a manner that implicates one of the licenseeer's exclusive rights of copyright. For a licenseeer's violation to be infringement, there has to be this nexus between the condition and one of the licenseeer's exclusive rights. So even if you make the argument that Blizzard didn't sell World of Warcraft but merely licensed it to people, Blizzard has a copyright right to grant people a license to copy the software, to make derivative works of the software, but nowhere in any copyright law does it say you can't use bots. So the court found that that failure of that condition meant you couldn't sue players for copyright infringement here. I think I'm okay on time, so I'll just add another wrinkle to this before we go into discussion, like open discussion with the audience. So AmeriPrize versus Fasada, it's a very recent case in the Western District of Texas. It's a really cool case, but it kind of deals with this at a slightly different angle. So there's this idea in United States federal law called preemption. It says if you have a state law claim and a federal law claim, the federal law claim may preempt the state law claim, meaning that federal law trumps state law. So the question there is, is an open source license a contract or does it sound in copyright? And you've got to go read Versata because it's a fundamental reading if you're into this sort of thing. But it held that for the purposes of preemption, the GPL was not preempted by copyright. So all that means is that you might be able to sue over the GPL in copyright, but you can't just go automatically say that there's only copyright issues at issue in the GPL. And the reason for that kind of lines up with the tests in MDY and the test in Jacobson. It lines up because it says, okay, first of all, there's preemption if the thing you're talking about is a copyright right. But also, they have this thing called like a next element test or a supplemental element test. The court held in Versata, the GPL has something extra, something extra that we don't like because it's this extra thing that's supplementary to copyright that means that we can't just say it's preempted. Okay. So that said, let's talk about this. Let's analyze some common open source licenses with this lens, with this Jacobson test and this MDY test. So first of all, MIT, right here, subject to the following conditions. So the court in Jacobson was really persuaded by using the word conditions. We know immediately that that is going to really get them going. What do people think? Is this a covenant or a condition? Does that, yeah, I'm just opening it up. So the above copyright notice and this permission notice shall be included in all copies of the software. Covenant or condition? Wait, wait, wait, wait, wait, wait. The line above says subject to the following conditions, which to me suggests it might be a condition. Yes. You know. Round of applause. Wonderful. Oh, let me go back. Yes. So that is a, well that's the exact reasoning that the court in Jacobson would use. They were very persuaded by the word condition. So that's the Jacobson test. Now let's spice it up. The MDY test, is there an essential nexus between this condition and the license or one of the license or is enumerated rights of copyright? That's a very, yeah, it's a puzzle. You have a puzzled look on your face. It's a weird question. So let me rephrase it. We said the essential rights of copyright boiled down to copying, being able to copy something, redistribute it or make derivative works. Is this condition connected to one of those three things? Wait, did you call on someone? Yeah, sure. Yeah. I was going to say, wait, wait, wait, wait, wait. I was going to take it a different direction and say this example shows why MDY is bullshit, which has been my view of MDY. It took a ridiculously simplistic view of, it completely falls apart under any sort of, any kind of, under many, many licenses, even not counting open source licenses. So to me it's kind of a, just a wrong decision. So let me address that for a second. I love that. The concept that MDY is bullshit, that's extremely helpful because at least we're both talking about MDY being something that we have to look at. And so, yeah, I might agree with you, but the pushback I have there is, you say that, but I think it really tracks with Jacobson actually because the essential nexus to one of the enumerated rights of copyright, I'm persuaded, I see the analogy to an economic right like the court Jacobson was talking about. Right. So again, it's all just rhetoric. So, and this I pointed this out, yeah, the yesterday with the Creative Commons licenses is the one commonalities attribution, which is not, which is not one of the exclusive rights of copyright. And yet we accept that as a very valid, I also, I also prefer to think of it not as the economic right, which is what Jacobson did, but it's just fricking consideration. It's nothing more difficult than consideration. So then, then when you look at it as consideration versus an economic right, then it's very simple. Yes, there's consideration. Tell me who the author is. That's the only thing I'm getting out of this grant is acknowledgement of my authorship. And that's very significant consideration. So I, then I guess I reject both cases. So, so, so, I guess in this, it would be a copyright, excuse me, a contract and not a copyright license, senior interpretation, the MIT license because you're talking about copyright. It's copyright license. Wait, wait, wait. Well, certainly I'm, yeah. Here, I'll take, well, yeah, and then I'll have to. I mean, do we want to go down the fact that, that I also kind of disagree with this whole, this world that there's sort of this concept that there's a license is simply, is simply a form of a contract. I don't think a license is a whole different sort of unicorn. It's just a unilateral license. Yeah. So, so then that's why I said, and it's, and it's a copyright license. I mean, it's a, it's a contract. You get to use my copyright in exchange for you giving me attribution. There is, there's, there's consideration for both parties. I just don't see that, and maybe I'm part of it is I just don't see the point of sort of this, this copyright versus contract question altogether. I can reject the premise of the talk. Let me keep going and I'll, I'll have some. I'll have some time for questions. Just give, just give me one second. So, yeah, that makes sense. I don't think we should necessarily divide licenses from copyright. I'm just, I'm just actually presenting the cases, talking about the whole things and saying like, no, don't, don't shut up. Collaborate with me and let's, yeah, let me hear your dissent in a casebook. So, we can ask the same question. Let's go to the really interesting things. The anti-teluization provision in the GPLB 3. So, yes, under Jacobson, this is conditional, right? Because the GPLB 3 says you can use this as long as you follow these conditions. But, and Pam, I think I know what you're going to say here, but I see less of a connection to a right of copyright here. In fact, I see no connection to a right of copyright. So, just to, just to conclude and then we can have a little bit more open discussion. A lot of license obligations can be fine, can be found to be merely contractual under all the available cases we have on the topic. They don't tie directly to an enumerated right of copyright. They fill the extra element test in Versata for preemption. But I want to end maybe on a more hopeful note, which is just dovetailing with Bradley's keynote yesterday. So, lawsuits are a tactic, right, to advance free software. They're not the end goal. Most of us don't enjoy law and lawsuits. I love lawsuits. I'm obsessed with law and lawsuits. But if we analyze this, then we, we just going to have to change our tactics, right? Because if our, if the tactics of free software depend on making copyright infringement allegations and getting huge returns like, like McCarty is kind of trolling, then that might need to be changed. But if the point is, and I say this at the end, the point is really, got community norms and pressure and other alternative regimes besides just copyright infringement lawsuits. Like, if you're not just trying to make millions and millions of dollars, there's a lot of ways to achieve the goals of free software. But at least I want to situate the tactics we use in actual case law. So, so that's it. And you can email me at xam at Google.com if you want to participate in the casebook. And I have a couple minutes. So, yeah, some questions? I'm really like your idea of having an open casebook. It gives me a sense that even though I'm not a lawyer, maybe as a legal geek, I could participate in some way or if the very least learn more about the findings and the understanding. And then of course I really like what Pam did. And it made me think, could this, would this, do you want this to be a collaborative place for us to share that kind of dissent and, and in discussion? Yes, absolutely. And, to, more power too. I should say I should have given credit. So, Dash over now is my colleague in the Up and Source Programs Office. He's a brilliant attorney. We argue constantly. And that, that argument has formed the substance of the casebook. The way that's presented, yes, we're going to invite lawyers, but we're also going to invite just any geeks that want to contribute. So the, the, the format is just going to be case excerpts and then discussion. Case excerpts and discussion. So, there's not going to be any real conclusions except summarizing the whole things of cases. So everyone's welcome to submit cases that think are relevant for the particular portions. And if you have a dissent, that'll just go in the discussion. Because the point is to have a unified document that kind of trains up everyone's mind. And, and we, we want them to see the world the way we have learned to see it over time. Questions? Yeah. Yeah. So, I get the impression this is going to be focused very much on U.S. law. Is that right? Ah, great. Great. So, I, I just wanted to follow up on that. Now, I'm, I'm not a lawyer. I'm an occasional litigant with some success. In U.K. law, there's a thing called the Contracts, Rights of Third Parties Act, which is kind of interesting. If you read the GPL with that act in mind and you think the GPL is a contract and not just a license, it's possible that end users might have the right to sue for compliance. And nobody, I mean, nobody that I know who has like been seriously involved in GPL enforcement is familiar enough, as far as I can tell, with U.K. law, to even have properly considered whether that's true or not. Yeah. That's a fascinating point. So, I, I think there would be a privity analysis that would be a little bit weird. Go ahead. Do you mind if I respond to that point directly? Please, go ahead. I'm, I'm in English. Are you okay? Yeah. Sorry. Just a little quickly. Yes. No, no, no, no. Yeah, yeah, I appreciate that. Go for it. Yeah. No, I'm, I'm, I'm an English lawyer. I think that's a really good point. But I think it's possible to analyze the GPL as purely being a bare license, in which case the Contract Rights of Third Parties Act doesn't apply. And the reasoning behind that is equivalent to the reasoning in a case called Robin around Classic FM, which I don't have enough time to explain to anyone. So, if you want to talk to me about it later, I'm happy to have a chat with you. Yeah. So, we're going to start with a focus on American law, just because we want to get the thing off the ground. But I definitely want to tackle European specific issues like moral rights. So, when, when a US copyright attorney, open source attorney hears moral rights, they just like put their fingers in their ears. This is the last question. But, yeah, please. So, I, I think your, your initiative to, for this open case book is, is, is really awesome. Cool. So, what's about extending that to discussions on the text of the licenses? So, because I'm, so I'm, I'm working day and night on open source software and their licensing. And I work a lot with lawyers, which most of the time, even though I'm not lawyers, I have to educate on the topic. Right. I think some reference discussion on case books going to be already something that's going to make their life much, much easier. And my life much easier. I think the same kind of discussion on the common open source licenses, which are scattered around would be a great, great, great thing to do, I think. Right. So, let me address that specifically, because I disagree with you a little bit. Because I think there's already an abundance of everyone sounding off on what they think an open source license means. Lawyer or not lawyer? I think what we act, what we really need though, is to agree and discuss the cases and to just get the questions flowing so that we can actually see what the state of the law is. So, if there were to be a discussion of open source licenses, we do it in such a way that they'd be grounded in the particular case and the particular thing. So, what I don't want to have is more facts that people start citing to say, this is what it means, this is what it means. I want people to think instead of to provide them conclusions so that they can short circuit actually thinking about the issues. Thank you.
shouldn't be disagreeing on what the case law is, copyright infringement damages. And if that reserve the right to give this license to other actually talk about the holding there and see if source license a contract or does it sound in copyright issues at issue in the GPL. And the merely contractual under all the available cases submit cases that think are relevant for the what I don't want to have is more facts that