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

Kim Holburn kim.holburn at anu.edu.au
Fri Aug 22 15:24:48 EST 2003

At 2:49 PM +1000 03/8/22, Mark Harrison wrote:
> > 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).

It's not the case.  The copyright owner has rights over their work.  In a contract or license they allow someone else (the copier) limited rights to copy the work in return for some kind of compensation.  If the contract is or becomes invalid it in no way causes the copyright holder to lose their rights.  If the contract is invalid, the contract is invalid.  The copyright holder can give or sell the rights to someone else but no other action can cause them to lose their rights.

> >   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.

No and M$ has billions of dollars that say no.

> >   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.

No, Dell has all the restrictions it had before it signed any contract with M$.

> >
>> 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

And most other people on the planet including lawyers.

>If there is no such thing as an empty license, then I agree
>entirely with you.

Like the empty set?  There is a class of empty licenses and it is empty - there is no empty license.

>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

We all already have it.  We all already have an empty license with Microsoft?  So there is no such thing as copyright?  I don't think so.

>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.

We probably agree that SCO has an absurd position - but even if that were the case there is no invalid license in the SCO case.

Kim "a lot of invalid arguments though"
Kim Holburn 
Network Consultant - Telecommunications Engineering
Research School of Information Sciences and Engineering
Australian National University - Ph: +61 2 61258620 M: +61 0417820641
Email: kim.holburn at anu.edu.au  - PGP Public Key on request

Life is complex - It has real and imaginary parts.
     Andrea Leistra (rec.arts.sf.written.Robert-jordan)

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