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On Thursday, August 1, 2002, at 09:59 AM, Tom wrote:> On Thu, 1 Aug 2002, CDale wrote: > > --]Leave it to Tom to put the one w/ his son's wanker in the center. > > Heck, why hide perfection:)- No bias here, nope none whatsoever.That reminds me of a Robin William's routine from the 80's concerning his witnessing of the birth of his son (back in the day, the presence of dad on the OB floor was still, well, rather Marin-ish)."It's a boy, and he's hung like a bear!" "That's the umbilical cord, Mr. Williams."-- whumphttp://xent.com/mailman/listinfo/fork

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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___________________________________________________________ Do You Yahoo!? -- Une adresse @yahoo.fr gratuite et en français ! Yahoo! Mail : http://fr.mail.yahoo.com -- Irish Linux Users' Group: [email protected] http://www.linux.ie/mailman/listinfo/ilug for (un)subscription information. List maintainer: [email protected]