[Python-Dev] license issues with profiler.py and md5.h/md5c.c

Phillip J. Eby pje at telecommunity.com
Fri Feb 11 23:59:33 CET 2005

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?)

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