Author of ATSC Capture and Edit Tool Tries to Revoke GPL

The author of ATSC capture and edit tool has announced that he is attempting to revoke the licensing of his product under the GPL General Public License. Unfortunately it appears that the GPL does not allow this particular action. Of course in this heyday of lawyers and trigger happy litigators who can tell. What successes have others had in trying to take something they once operated under the GPL and make it private? And the more pressing question, why?

May I be the first to say

FORK IT!!

Thank God for the GPL!

GPL

The author could conceivably release a *new* version under whatever license he chooses. There is nothing saying he has to continue to release under the GPL going forward. But the copies that have already been distributed under the GPL are out there and cannot be revoked. The people who have the code now can continue to legally modify and redistribute it under the GPL and there is nothing he can do about it. If the new version is closed source, people will simply continue developing the GPL'd version, and there is nothing the author can do about it.

Re:GPL

> So after that point, the original author can't even relicense
> code that the original author adds to the project,

nope.

the author of any piece of code retains the copyright on whatever they write (unless they assign it to someone else - like the project's lead developer or the FSF), so they can take their code (both the original code AND anything they've added to it after contributed code is accepted) and re-license it.

they will, of course, have to delete or rewrite or negotiate a license for any code contributed by others.

(actually, even rewriting may be difficult - "clean room" reverse engineering is extremely problematic for free software or any other code where you've already seen the source)

NOTE: this still doesn't allow them to revoke the GPL on previous versions of the program.

of course, this is a good argument for contributors to GPL projects to either retain the copyright in their own name (or assign it to the FSF who they can trust to keep it free) so that projects they contribute to find it very difficult to go closed-source. it's also a good argument for choosing not to contribute to projects that require transfer of copyright for contributed code.

Re:Gee, what a *GREAT* idea

Actually, there's a good question in there.

The GPL states that if you are restricted from distributing a work due to other encumbrances, you must refrain from distributing under GPL as well. It's not intended to be a rights-laundering license.

So the question is (or rather my question, since I'm sure actual legal scholars have already debated it to death) if it turns out that someone up the chain did not have the right to distribute under GPL, does that propagate down the chain to all those who unknowingly redistributed software for which the authority to actually do so was never transferred to them by someone who had it?

Re:Gee, what a *GREAT* idea

Actually, there's a good question in there.

The GPL states that if you are restricted from distributing a work due to other encumbrances, you must refrain from distributing under GPL as well. It's not intended to be a rights-laundering license.

So the question is (or rather my question, since I'm sure actual legal scholars have already debated it to death) if it turns out that someone up the chain did not have the right to distribute under GPL, does that propagate down the chain to all those who unknowingly redistributed software for which the authority to actually do so was never transferred to them by someone who had it?

Yes, it propogates. If the first person was not authorized to distribute the code, then the GPL does not make it valid. As the GPL prohibits licencing encumbered code, it does not apply, thus any distributions were not made under the GPL, and thus those distributions cannot be redistributed under the GPL as the original copy was never validly released under the GPL. Of course, IANAL.

Re:Gee, what a *GREAT* idea

Yes, it propogates. If the first person was not authorized to distribute the code, then the GPL does not make it valid. As the GPL prohibits licencing encumbered code, it does not apply, thus any distributions were not made under the GPL, and thus those distributions cannot be redistributed under the GPL as the original copy was never validly released under the GPL. Of course, IANAL.

In this case, the person who "revokes" the license claims that he is the sole author of the software in question (unfortunately, he doesn't write that he is the copyright holder, but if he isn't the copyright holder, then he doesn't have the right to give or deny permission to anyone, so we should assume he is the copyright holder).

So according to what he says, everybody who has the code right now has it legally. He also says he is revoking the GPL, he doesn't claim that the code was stolen from him, so anybody who received the code has it under the GPL license.

He has of course the right not to make any further distributions himself using the GPL, or not make any bugfixes available under GPL, or just not make any bugfixes available at all, and to ask people to please delete the software and not distribute it. However, anybody who has the software still has the right to distribute it, that is irrevocable. There is nothing at all he can do about it. If he tries to sue anybody for distribution, that would be thrown out of court in no time.

Re:I read 200 comments at threshold -1

I've submitted a project request to SourceForge for a GPLV3 fork of atscap-1.1rc9t. We'll see how it goes.

Re:Gee, what a *GREAT* idea

Do you even know what you're talking about?

"Here I gave this away. Everybody photocopy it."

"No wait. I changed my mind. Destroy your copies! If you give away one of your photocopies, I will have you convicted for trafficking stolen property."

Do you see how stupid this is? Even a Lawyer would be able to understand.

Re:Gee, what a *GREAT* idea

But the flip side is that if you obtain stolen property it doesn't matter if you accepted it in good faith, it's still not yours and you have to return it.

You remind me of the anorexic, who couldn't decide whether or not they were on a diet.

So they ate a whole chocolate cake.

Afterwards, they decided they were on a diet, after all. So they took steps to return the cake to the uneaten state.

It seems to me what the original author and copyright holder is saying is:
* I wrote some great software;
* I couldn't decide whether or not I wanted to release this software under the GPL;
* I thought my career would get a boost, from my reputation getting a boost, from releasing something good. Users might pay me consulting fees to maintain or extend my product. I might sell a book on how to use it. So even though I hadn't really made up my mind, I gave it away.
* Well, my career didn't get the boost I expected. So, now I have finally made up my mind. I don't want it out under the GPL after all.

This does not make anyone who received it from him a thief. It does not make anyone who received a legitimate copy, one that came with a copy of the GPL, and credited the original author, a thief.

And, IMO, it doesn't make anyone who redistributes his software, with the GPL liscense, and the appropriate credit, a thief.

Distributors who filed off the serial numbers, gave it away, or sold it, without crediting him, were thieves -- both before and after he tried to revoke the GPL.

Warning! Never do business with this individual! How could you tell he would honor any agreement you thought you had with him?

Re:Screw the issue of contract

It sounds like in this case he is the sole contributor of the code in question, so he did not gain anything from them. Further, other people's reliance on a piece of software doesn't determine revocability of the license. Microsoft can revoke your license because you pirated Office even if your business relies on it.

What you're talking about, presumably is promissory estoppel. That doesn't apply unless the author made some sort of promise that the code would always remain available under the GPL. While we commonly interpret the GPL to be implicitly "free forever", I don't see any obvious terms in the GPL prior to version 3 that prevent revocation, so certainly no such promise was expressed. Whether it is implied or not is certainly not clear cut, but my gut reaction is to say that no, no such promise was in any way implied, either.

The lack of a revocability clause was fixed in GPL v3 with the clause "All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met." This clause notably does not appear in prior versions of the license. It should also be noted that although the FSF's lawyers claim that the GPL is irrevocable, one could reasonably assert that the inclusion of such a clause in v3 of the GPL is an indication that the FSF's lawyers are aware that this was a deficiency in the previous license and that irrevocability is neither stated nor implied by the GPL prior to version 3. As such, unless this has been licensed under GPLv2, it is implicitly revocable by the author, with the caveat that if it was distributed with a "v2 or later" clause, it may or may not be, depending on whether the court determines such a substantial change in the license terms perpetrated by a third party (the FSF) to be unconscionable....

In this particular case, the license appears to have changed from "version 2 or later" to "version 2 as published by the FSF" in 2005. This would imply that anyone obtaining it prior to that date could redistribute that rather old version, but only if the "or later" clause holds up. If I were arguing for the author, however, I would note that the GPLv3 process began about then, and that there was, in fact, no later version at the time, and that his change of terms makes it very clear that the author did not intend for it to be licensable under the substantively different terms of GPLv3. IMHO, this significantly diminishes the chances of even pre-2005 copies being redistributable, as that clause was technically revocable at the time (as was the entire license). It may also be significant that the irrevocability clause was not in the license until after 2005. It isn't clear whether the courts would interpret the "or later" clause in the context of licenses available at the time the clause was revoked or "forever", but the former seems more likely since the alternative is the civil equivalent of an ex post facto law, of which Thomas Jefferson had this to say:

"The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just." (Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813)

Source: Wikipedia [wikipedia.org]

In short, the determination of revocability may depend on whether ex post facto contracts are held to be legal in a particular jurisdiction. My gut feeling, though, is that a GPL license should never be assumed to be a permanent grant of license unless either A. it is explicitly declared irrevocable by adding additional terms to GPL v2 or earlier or B. it is explicitly licensed under the GPL version 3 (and not "GPLv2 or later").

Caveat: IANALBIPOOSD.

Re:Screw the issue of contract

Contracts of sale don't explicitly spell out that they are irrevocable, it's how sales work.

Similarly, you can't reasonably write a license that doesn't require your participation, doesn't record a start date, can be re-entered by the person at will, can be re-granted at will, etc, to be limited in span. It would require future communication to even allow the GPL to be revocable, something it does not require. You need never speak to the author, let alone after accepting the GPL.

You could not reasonably expect to be able to revoke this contract, and thus could not reasonably expect to have it revoked upon you. Many contracts and licenses contain language, and requirements (paying for access, asking permission again in x years, etc). There are clear ways to write these contracts and the GPL contains none of them. Further, the author picked the license, presumably because he understood it and liked it. If this was a case of a user who entered into a GPL-like contract with little knowledge, they might reasonably make the claim that the irrevocable nature was unreasonable. Instead, the author, the only party with the ability to negotiate terms, explicitly picked this license.

Finally, I don't see why a later indication of his changing intent matters. He offered a deal, people accepted it. Case closed. He seems to have decided that he shouldn't have offered that deal, but he did and is bound by it. It's the nature of people to feel buyer's/seller's remorse when they find the true value of things, but sales are still final (with some exceptions).

Re:Gee, what a *GREAT* idea

someone has made noises about suing him for having this software out there

That's a pretty good theory. This whole thing reeks of panic and trying to sweep something back under the rug. I don't really get why, though... from what I can tell, this looks like some drivers for a set of vid-cap cards, and unless he copied the source code itself, simply writing original drivers for something isn't really something you can sue over.

Of course, it looks like this is some HD stuff (I see mentions of 720p and 1080i on a few pages...), so I wonder if there could be some MPAA pressure about not supporting some HDCP or other copy-restriction idiocy? Even so, unless he has a contract/nda/etc with them to not reveal such information, I still don't see how he could be liable in any way.

And almost certainly wrong

I am guessing that he has found a new business model/investor and now wants to change.

But he will not be able to revoke the GPL for the old work. The reality is that he used lower level GPL software to build with. As such, he entered into a contract that said, I am re-paying you by adding to the work. Once he released it, it was payment. Imagine if MS sold you an application, and then later decided to jack up the price you paid for it i.e. they charge you again. That is illegal (though you may have to pay for certain extras).

In fact, if he could retract the license, then why do commercial companies with their big fancy lawyers not retract your right to use their software when they want you to upgrade? In particular, MS sells you a app say MS word. License says that if you paid us for you have the right to use this on one system. Later, MS wants you to upgrade. How do they encourage it? They stop support it for it. But if they could retract the license and say that you are now illegal and must get rid of this, don't you think they would? In fact, IBM and others would be doing it ALL the time. Point is, the GPL was legally applied to this app. It has been there for a long time.

He has ZERO rights to pull it back. The only right that he has is change the license of future code.

Re:May I be the first to say

> All he has to do is make a one line diff and take it closed source.
> Now it's not under the GPL. Until he does that, any copies randomly floating
> around are under the GPL until his copyright expires

wrong.

the new version, with the one line change, is under a new license.

the old version, without the change, is still under the GPL and always will be. The GPL can not be revoked, although (assuming that all copyright holders agree) there is no requirement that future versions have to be under the GPL. if there's only one copyright holder, then he or she can change the license on future versions at will. but they can not revoke the GPL on previous versions.

when the software was originally licensed under the GPL, the author said "here's what you can and can't do with it". note that there was no clause in there for revocation of that license, it was granted in perpetuity. that is a deliberate and well-publicised feature of the GPL.

for those who might like to argue that the GPL is a form of contract (a dubious proposition in itself) and contracts require value to be exchanged by both parties in order to be valid, therefore the GPL "contract" is invalid, consider this: value HAS been exchanged in both directions. the recipient receives the value of the source code, the author receives the value of open source critique and commentary as well as the value of free distribution and publicity.

Re:May I be the first to say

The GPL only applies to distribution. If he doesn't wish to distribute it any further then that is his wish. You cannot force someone to give you GPL code unless they distribute it or its products to you. Further more being the sole copyright owner he can change it so that it isn't GPL and then distribute it. None of the code would be GPL so you can't get him to give it to you. He cannot go out and change the licence on old code that has already been distributed because he has assigned the right of redistribution when he distributed those copies. GPL has no obligation on anyone but the distributor.

Re:May I be the first to say

No. The copyright holder is not bound by the GPL.
The copyright holder is bound by copyright law.
Other people who have copies are bound by the GPL (and copyright law).

The issue at hand here is really if: he can give people permission to redistribute using the code, and then change his mind after they've already received it under that agreement. If I had a copy, then he has already given me permission to redistribute without checking with him. He's now saying that only he can give permission to redistribute. What if I never check with him? He didn't require me to before. How am I expected to know? Am I bound by his new decession, or may I argue that I have received permission and am relying on it?

The "three years" clause that you mentioned only applies to someone distributing a binary without the source.

There is nothing in the GPL that says that he is obligated to do anything once he has released the code. He may cease to distribute entirely; he may distribute under a different licence of his choosing. The only question is: does copyright law allow him to revoke such a permission once granted?

IANAL

It is not allowed.

You cannot revoke the license. IANAL, but the FSF makes this fairly explicit:
http://gplv3.fsf.org/comments/rt/summarydecision.html?filename=3D%3C%25%25%20gplv3-draft-1%20%25%3E&id=917 [fsf.org]

--Sam
P.S Click the link; it's more complicated than I've laid out here.

Come on guys, it's not hard.

READ the license before putting your code under it. I know the GPL is big, but you only need to do it once. You can change the license on future releases (assuming you own the copyright), but you can't revoke the rights the GPL grants to people using past releases.

why such incompetence?

How is it possible that people still don't get how the GPL works, and still think they can treat it like a contract or something?

I would think that it would be obvious, after reading the FSF web site or even just the news about the GPL, that stupid tricks like this not only don't work, but are the very thing the GPL is intended to prevent.

Even more strange is that people seem to think they can write up these fancy-sounding letters as if they were a lawyer. Did they somehow miss that law is complicated and we have lawyers go to school for many years to properly understand all this? (note: if it actually /was/ a lawyer that wrote this, that's even more insane. Fire that incompetent freak!)

GPL is not the issue

If you release code under any license that version is still that license. Any new versions can of course be any new license you want, but people can continue to use and indeed fork the old one if that license allows it, which in this case it does.

Wiggle room

Its not entirely impossible that he could make it stick, just unlikely. For example: Was he over 18 at the time he released the code under the GPL? If not, he might not have been competent to enter in to a licensing agreement. If that's the case then the original grant of license under the GPL is void. Technically that's not the same as revoking it, but it has the same effect.

Request Denied

If revoking the GPL were possible, Microsoft could simply buy the copyright to any GPL project it deemed a potential threat and revoke the licensing (existing users would get a license pricing break 12 months later on Microsoft LS, Microsoft CAT, Microsoft FIND, Microsoft IFCONFIG, etc...).

Frankly, I wonder what the causative factor was. Did someone threaten to sue him unless he pulled the code down?

Schwab

Linus Torvalds to revoke everybody's Linux license

On a similar note, I (Linus Torvalds) have revoked the GPL license for my code in the Linux kernel, effective immediately. If you are selling Linux, you are required to destroy all copies of unsold software and contact all your past customers and get back the copies you sold them and destroy those as well. I you are running workstation or servers even in critical enviroments, you are required to immediately turn off the power to these systems and destroy the hard drive on them. If you are selling or have sold systems with Linux embedded in them (e.g. Linksys routers and Tivos etc) you are required to destroy all unsold systems and re-acquire all systems sold in the past and destroy those too. If you have a Tivo or a Linux based router or other Linux based embedded systems at home, you are required to immediately power these off and destroy them. Please keep ample evidence of the destruction of this property so that you are properly able to defend yourself in court at a later time.

Thanks and God bless America.

America #1.

-Linus

Re:IANAL, but...

Well then, let's see him put toothpaste back in the tube,

So you are saying that if he can put toothpaste back into the tube then we'll let him change the license on the software?

Re:Could fuel anti GPL fire

Why would it raise concerns about the GPL in particular? If the GPL can be revoked after the fact, then *any* software license (proprietary, FOSS or whatever) could likewise be revoked. Any 3rd party code of any kind in commercial applications would be at similar risk.