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    Tue, 08 Oct 2002 23:51:52 CEST
From: =?iso-8859-1?q?Paul=20Linehan?= <plinehan@yahoo.com>
Subject: Re: [ILUG] Interesting article on free software licences
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X-Original-Date: Tue, 8 Oct 2002 23:51:52 +0200 (CEST)
Date: Tue, 8 Oct 2002 23:51:52 +0200 (CEST)



I have translated the article in full - see 
end of post (I think that I've done a far 
better job than the Google translation - at 
least it's readable now - any corrections
appreciated).

Stuff in {}'s is my (and others) additions 
to the debate.

My apologies if I've paraphrased anybody 
incorrectly, I will be glad to retract if 
anyone is miffed.



The article makes four main points.


1) Absence of critical clauses. 


In this case, the idea is that the licence 
is invalid because it doesn't specify
under what country's law the GPL is governed.


2) Specification in English only.

That for the end user (as opposed to businesses), 
the GPL doesn't apply because it's not written 
in French.


3) Arbitary licence change.

The point here is that (under French law) the 
author can change the terms of the licence 
arbitarily. This is because any granting of 
rights by an author must be clearly delimited
in terms of how long, where, to whom, dates and 
times. In the absence of such limitations, the 
original author has the right to change his 
software back to closed on a whim.


{

David Neary makes the point that the copyright 
holder automatically retains the right to change 
the licence.

Scott replies it simply requires authorisation from 
all *copyright holders*

That's not my understanding. French law allows a 
GPL type licence *_on condition_* that the 
specific conditions of the granting of such
rights are clear - if they are not, there is
nothing to stop the original author taking
back "his work". The lawyers see this
(correctly IMHO) as a weakness in the GPL).

}



4) Hidden defects.

Roughly, this clause means that the author(s) 
is/are liable for any defects if the consumer 
is not an IT engineer, so if Linux blows up 
and data is lost, then the authors are liable.


{

Ciaran Johnson says that M$oft and others have 
similar clauses - the point here is that they 
are *_all_* invalid - just that this one 
affects the GPL also.

Niall O'Broinn makes the point that it is not
a sale, but rather a service/leasing arrangement
and that's why it doesn't come under this point.

I would suggest that the whole thrust of this
article has been to see software "sales" (even
if no money changes hands) as governed very
much by consumer law (in France anyway).


Rick Moen makes the point that it is not
a sale but rather a granting of rights which
are not default. 

See the bit about even the granting of 
rights by an author having to be 
explicitly specified - under French law.


The fact that two IP lawyers in France think that
the GPL is covered as a sale make me feel that 
there is a de facto sale and a de facto contract.

}



5) Roughly.

There may be other reasons under French 
law why the  GPL may be invalid.



-----  Whole Article. -----------


Freedom(a) is worth more than these 
imperfect licences.


Specialised lawyers look at the GPL.



Lawyer Cyril Rojinsky (duly appointed to 
the court) and the jurist Vincent Grynbaum, both 
specialised in the area of intellectual property 
examine the "free" licences and in particular the 
GPL. They have published their study
in the review "Proprietes intellectuelles 
(Intellectual property)[1]" and their
conclusion is grim.


Their approach is interesting. The problem for 
them is not to know whether freedom is valid under 
French law (for them the question is a moot point)
but rather they asked themselves about the form 
and the content of the text of free licences, and 
in particular the GPL. The problem is not free 
programmes, but rather the licence contracts of 
free programmes.



Absence of critical clauses.



The authors tell us that first of all, the 
reference to "copyright" is not legally 
sufficient in the framework of international 
contracts  (which is the case of licence 
contracts for programmes developed and spread 
via the Internet). The idea of copyright can 
basically include differences from one country 
to another. This is why, under international 
contracts, it is necessary to specify to which 
laws one is referring (French law, American &c.).

The authors only found three public licences 
which were correctly formulated on this point: 
QPL, IBM Public Licence and the Mozilla Public
Licence).



Specification in the English language.



Next, the authors remind us that (at least in 
France), no clause in a contract may be contrary 
to French law [2]. However, it turns out that a 
licence such as the GPL is contrary to French law 
in several respects. Firstly, it is written in 
English and the FSF doesn't officially approve 
translations. 

The "Toubon law" obliges this sort 
of contract to be written in French, including for 
businesses since the notion of "user" applies not 
only to consumers, but also to businesses, 
professionals &c. 


Contacted by the editors of LinuxFrench, 
lawyer Cyril Rojinsky declared that, as 
far as business is concerned, the "Toubon 
law" is probably doomed to change since 
it is in contradiction of European directives 
on the subject, but whatever about that, the 
problem is still valid for individuals, and 
while waiting for it (French law) to change, 
French companies have to deal with it, since 
it is the law of the land.


A programme under the GPL can suddenly 
change licence.


Another problem, much more serious, is 
that according to French law, the author of 
a free programme can, at any time, invoke 
the invalidity of the licence for this 
software by simply changing the licence.


In effect, the law of intellectual 
property stipulates that the granting of  
rights by the author is subordinate to 
the condition that each of these granted 
rights be the object of a distinct clause 
in the granting act (i.e. the licence) and 
that the granting of any such rights be 
delimited with respect to its scope and its 
grantees, and also with respect to its 
location (i.e. where such rights may be 
excersised)  and duration of any such grants. 
[3] This is not the case of the GPL nor of
other free licences. Briefly, this means 
that in France, or elsewhere if the author 
is French, that which is under the GPL could 
revert to proprietary from one day to the next. 
 


The problem of the guarantee "hidden defects".


An other very serious flaw is that of the 
guarantee. The GPL licences and others show 
that the software is delivered "without 
guarantee". You are going to immediately
reply that commercical programmes carry the 
same clause in their licence contracts,
and this is correct. However, whatever is 
written in a licence contract, one cannot
free oneself from the "guarantee from 
hidden defects", since it is imposed in the 
Civil Code. This concept is poorly understood 
by the layman, it protects the buyer
(whoever it may be, individual or business, 
since it specifies the Civil Code and not 
consumer protection law) against hidden 
defects, deliberate or made in good faith by 
the seller. 


For example, if one buys a pair of socks 
in a sale, and the shop has a notice 
specifying that "Sale items are neither 
refunded nor exchanged", and on arriving 
home you notice that one of the socks has 
a hole in it, several scenarios are possible.


You could have checked the socks before 
purchase: the flaw is deemed "obvious" and
you can sing for your money.


You couldn't check the socks (they were 
packaged for example), and in this case, 
despite the notice "neither refund nor 
exchange", you may invoke "hidden defect" 
and have them changed or obtain a refund, 
it's up to you. 

Personally, I have already invoked in shops 
the "hidden defect" clause and it always 
worked well (shopkeepers are always very 
cooperative if you quote a couple of words 
of the Civil Code). 


The concept of hidden defect is rather 
wide, it is necessary that you hadn't 
the possibility of discovering the defect 
before buying the product and then 
(according to the Civil Code) that you 
wouldn't have bought it at that price if 
you had known about the
defect.


The third case which is much rarer , is 
if you are able to show that the vendor had
knowledge of the defect (hidden), but didn't 
inform you. In this case, not only does he 
have to reimburse the product, but all 
expenses incurred by the sale (metro 
tickets to go to the shop, the fuse 
which blew when you plugged it in &c.)


This idea of "hidden defect" applies to
 all products, including programmes. This 
was made abundantly clear by the 
authorities (and the courts) surrounding 
Y2K. 

This is particularly inconvenient for 
free programmes, since a site which 
offers a Linux distro for download is 
supposed to provide a guarantee against 
hidden flaws.


LinuxFrench asked Cyril ROJINSKY if 
in the case of a free programme, 
one could speak about a "hidden" defect 
since the source code was available, 
he replied "Actually, concerning the 
guarantee, the question of obvious 
defect will arise. This analyis will 
be different depending on whether the 
person who downloads the distribution 
is an IT professional or not". 

OpenSource has this advantage over 
the proprietary programme: it protects 
the distributor against a guarantee of
hidden defect insofar as the buy is an 
IT person. But, for distribution to the 
public at large, the problem remains 
the same.



Roughly Speaking.


Lawyer Cyril ROJINSKY said it himself, 
this study is far from being exhaustive 
and many other areas could be explored. 

During this interview, we asked ourselves, 
for example, about the fragility of the 
GPL clause which forbids linking source 
code under the GPL with proprietary code. 

In effect, the laws of intellectual 
property give the right to the user 
to modify a programme with the
intention of permitting interoperability 
with another programme. If for that,
I need to link with a proprietary library 
(communication protocol, device driver)
I may consider as "null and void" this 
clause of the GPL.


The conclusion of this study is a wake 
up call for the community. "Freedom" 
merits more than these shoddy licences, 
which should be modified before court 
cases over them proliferate and put at 
risk the undeniable originality of 
this effort.


---------------------------


[1] Une publication de l'Institut 
de recherche en propriété 
intellectuelle, No4 Juillet 2002

[2] Une telle clause de contrat 
qui est opposée à ce que dit la Loi 
française est qualifiée en terme 
juridique de « clause réputée 
non-écrite », c'est-à-dire 
qu'on fait comme si cette clause 
n'était pas écrite dans le contrat. 

C'est pour cela par exemple que vous 
pouvez signer un bail pour un 
appartement qui stipule que 
les enfants sont interdits dans 
l'immeuble, et envisager sans 
inquiétude d'avoir quand même 
un enfant, en effet le code civil 
stipule que le devoir d'un locataire 
d'un appartement doit se comporter 
en « bon père de famille » 

[3] Article L131-3







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