The exfiltrated exFAT driver [LWN.net]

The exfiltrated exFAT driver

Posted Jul 27, 2013 16:48 UTC (Sat) by mjg59 (subscriber, #23239)
In reply to: The exfiltrated exFAT driver by malor
Parent article: The exfiltrated exFAT driver

You have references to established case law to support these assertions?

to post comments

The exfiltrated exFAT driver

Posted Jul 27, 2013 18:23 UTC (Sat) by mathstuf (subscriber, #69389) [Link] (7 responses)

Has there been much case law for either argument? Given what is written here, a new license being granted with each copy of the code makes more sense, but then I'm not versed in the legal dialect of logic much, so who knows.

The exfiltrated exFAT driver

Posted Jul 27, 2013 18:38 UTC (Sat) by mjg59 (subscriber, #23239) [Link] (6 responses)

I don't know - I'm not asserting that Malor's interpretation is incorrect, just that I know lawyers who disagree with it (and other lawyers who disagree with them). As a result, I think that it's inappropriate to describe this as if it's settled.

The exfiltrated exFAT driver

Posted Jul 27, 2013 18:45 UTC (Sat) by mathstuf (subscriber, #69389) [Link] (5 responses)

Oh, I agree its not settled, but if you could reiterate (or link to) some of the reasons behind your lawyer acquaintances' views, that'd make for a better discussion than "so?" or "and?".

The exfiltrated exFAT driver

Posted Jul 27, 2013 19:23 UTC (Sat) by mjg59 (subscriber, #23239) [Link] (4 responses)

The relevant part of GPLv2 is:

"6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions."

Arguing that downloading a new copy provides a new license requires arguing that the original licensor is deliberately providing you with a new license despite the fact that your original license was terminated under section 4. That seems to be a reasonable literal reading of the text, but it's not explicitly stated and so it's arguably going to be influenced by the interpretation of the (a) license authors and (b) copyright holders. I don't know that it's been explicitly stated, but GPLv3's re-instatement clause would be pretty pointless if downloading a new copy granted you a new license and so it seems safe to assume that the license authors don't agree with the "new license per download" case. Whether copyright holders agree with that position or not is less obvious, but there are certainly some Linux copyright holders who believe that termination isn't rectified by downloading a new copy.

The exfiltrated exFAT driver

Posted Jul 29, 2013 5:17 UTC (Mon) by mathstuf (subscriber, #69389) [Link] (3 responses)

> but GPLv3's re-instatement clause would be pretty pointless if downloading a new copy granted you a new license and so it seems safe to assume that the license authors don't agree with the "new license per download" case

So my question here is: how can the GPLv3 affect GPLv2 (in the legal sense)? What the authors intended might be nice and all, but intentions aren't what matter most in the court room (for contracts and such at least) since there are written words to quibble over that both parties agreed to. So while the reinstatement clause of v3 may exist, I'd think that the courts like explicit statements much more than implicit implications read between the lines (I believe the colloquial term is "covering your [b]as[e]s"), but that only really affects the GPLv3, not v2.

I imagine one thing to quibble over is "distribute". What action is it referring to? The upload to a public-facing server, or the act of downloading from said server? Would all it take is to have some middle man who hasn't lost their license to download the original, upload somewhere else and then the entity which lost its license download from there, getting their rights back transitively? Can I not distribute some piece of GPLv2 software to someone who lost their license to it since I can't give them the same rights? What happens to my license in that case (I'd imagine "nothing")?

The exfiltrated exFAT driver

Posted Jul 29, 2013 5:26 UTC (Mon) by mjg59 (subscriber, #23239) [Link]

Absolutey, GPLv3 probably has little influence on GPLv2. But both are based on the same legal system, and so if downloading a new copy granted you a new license in GPLv2, it should do in GPLv3 as well. GPLv3 behaves as if that's not the case, so GPLv2 is (probably) equivalent in that respect.

But, like I said, I don't believe that anyone's attempted to test this specific case. To the best of my knowledge, no GPL cases that have gone to court have attempted to claim that they'd gained a new license through an additional download.

The exfiltrated exFAT driver

Posted Jul 29, 2013 7:15 UTC (Mon) by marcH (subscriber, #57642) [Link] (1 responses)

> So my question here is: how can the GPLv3 affect GPLv2 (in the legal sense)? What the authors intended might be nice and all, but intentions aren't what matter most in the court room (for contracts and such at least) since there are written words to quibble over that both parties agreed to.

Sure written words matter most. IANAL but I'm pretty sure most courts consider intentions as well to a lesser degree. Among many other examples, in some jurisdictions some contracts do not even need to be written. A hand shake or even phone call can be enough.

The exfiltrated exFAT driver

Posted Aug 2, 2013 16:43 UTC (Fri) by Wol (subscriber, #4433) [Link]

The written word trumps the spoken word.

But where the written word is ambiguous / doesn't exist, the intentions and spoken words have legal force.

Of course, proving intentions and spoken words can be very difficult, which is why it's important to make sure the written word says what you mean.

For the most part, contracts by mouth/handshake were enforced by trust. In a small market where everyone knew everyone you had a symbol (such as a handshake) that said "okay, we have a contract". Get a reputation for walking away from agreements, and you would rapidly find yourself unable to do business.

Cheers,
Wol