[clug] sec: unclassified - Samba Team, on SCO and sweet irony

Mark Harrison m.harrison at anu.edu.au
Fri Aug 22 14:48:41 EST 2003

> What you are saying really is that if the contract between a copyright holder 
> and a licensee is declared null and void for legal reasons eg. the conditions 
> in the contract are illegal, then a *new* implicit contract comes up between 
> the copyright holder and the licensee which basically gives all the 
> copyrights of the copyright holder to the licensee ("no conditions in the 
> license" means that really).

>   Basically if any copyright holder signs a 
> contract to license his/her work, the licensee could pull out of the contract 
> and as long as they had any sort of contract to license the work, by  pulling 
> out of the contract (even if there is a penalty) the licensee gains all 
> rights to the work.
No. I am talking about the license being invalid. What I am talking
about does not apply to someone trying to pull out of the contract. What
I am talking about is when two parties want to share their work and they
come up with an invalid way to do it.
>   Now Dell has a license from MS to mass-load Windows XP 
> on new PCs.   So they are effectively licensing copyright from MS to allow 
> them to copy and distribute Windows XP under certain conditions and in 
> certain ways.  Now by your reasoning, if Dell pulls out of the contract eg. 
> saying that the conditions you made us sign violates the anti-trust 
> agreement, then all of the copyrights of Windows XP automatically goes to 
> Dell as they suddenly obtain a license to do whatever they like with Windows 
> XP ie. your "license with no conditions".
No, Dell pulled out of the contract so they get nothing. If Dell shows
that all of the license is invalid becuase of anti-trust, then they get
a completely unrestrictive license to use XP - and that is MSs fault.

>   Of course MS still retain their 
> copyrights to Dell, but your "implicit new license with no conditions" means 
> that any copyrights that MS had also now belong to Dell because Dell pulled 
> out of the contract it signed with MS.
No, If Dell pulls out they get nothing. If the whole lisense is invalid,
then Dell has no restrictions until MS goes out an restricts them.
> Your reasoning simply doesn't make sense.  If the law worked like this,  no 
> author, musician or anyone with any copyrights would ever sign a license 
> agreement with anyone because all the licensee has to do is break the 
> contract for whatever reason no matter how trivial or make sure there are 
> some trivial clerical errors that make the contract illegal and they get all 
> the copyrights to the work (even if the original author still maintains their 
> own copyright).  
again, I am not talking about what happens when someone pulls out of a
contract, so that picture of the future is not what I am talking about.
> If the law worked the way that you say it does, there would be utter and total 
> chaos and the whole intellectual property system of licensing and contracts 
> would fall down into total disarray.
If the law worked the way you say that I say it does, then yes. But I
have not said (I hope) what you say I have said.

What I am talking about is having a license between two people that
explicitly says nothing. You get to this situation when parts of a
license become invalid. If a license has two parts and one part is
invalid, then remaining part may still be in force. If that last part is
then found to be invalid, you say the license dissapears, but I think it
stays there and is just empty.

I think that last part is the main point where my thinking diverges form
yours. If there is no such thing as an empty license, then I agree
entirely with you.

An empty license gives you no rights explicitly - but it places no
restrictions explicitly. A license is about what you can do and what you
cant do also. Licenses usually say what you can't do (ie "ALL rights
reserved") and then give a limited list of what you can do. If it does
not say you can't do it, I would read that as "You are allowed to do

Now, I have no intention of testing this any time soon. And I am
certainly not trying to state a position that destroys copyright (even
though I think it is messed up in the way it is used). I am talking
about an absurd case that would rarely come up - unless someone like SCO
comes along.

> Pearl

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