linux-kernel - Regarding threats to "CoC" you. - You do have recourse

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Date:   Thu, 09 May 2019 15:16:31 +0000
From:   informator@...chan.it
To:     phk@....freebsd.dk
Cc:     linux-kernel@...r.kernel.org, misc@...nbsd.org,
        freebsd-chat@...ebsd.org
Subject: Regarding threats to "CoC" you. - You do have recourse - license
 rescission

Dear Poul-Henning "UNIX guru at large" Kamp;
    Many have noticed threats made against you recently to seek your
ejectment from the FreeBSD project as retaliation for statements
you made protesting the ceaseless and ever on-going slaughter of
innocents; A transparent attempt to censor your political speech,
if there ever was one.

    I am forwarding this message below to you because if such is
attempted, you do have recourse: and that is the rescind the
gratis license you have granted regarding the use of your works of
authorship. You may rescind these grantsfrom your attackers, those
who fail to defend your right to free speech, from the project
itself, or from all free-takers (if such is your wish).

    Remeber: A non-exclusive license grant is not a transfer of
copyright, and such a license absent bargained-for consideration
is just that: a license (permission); it is not a contract and does not 
bind the /grantor/ to any terms. It can be revocated at
any time, for any or no reason.

    This applies to all the "classic" free licenses, from the MIT
license, to the BSD license, to the GPL.

-------
The proclamations made by some as to the irrevocability of freely given 
non-exclusive licenses are incorrect.

If the non-exclusive licensee did not pay the copyright holder 
consideration for receipt of the permissions given regarding the 
copyrighted work, the copyright holder can freely rescind those 
permissions _AT_ANY_TIME_ .

The reasons are as follows: For the licensee to "hold" the licensor to 
any promise regarding when and how rescission is to take place there 
must be a contract between the two. A contract requires valid 
bargained-for consideration. Otherwise any "promise" made is an Illusory 
Promise (unenforceable).

"Nothing" is not valid consideration.

Obeying a pre-existing duty is not valid consideration.

The licensee has a pre-existing duty to obey copyright law, without 
permission from the copyright holder he may not 
use/modify/make-derivative-works-of/distribute/distribute-derivative-works-of. 
That permission is what he is attempting to "contract" for. Saying one 
will follow those permissions is not valid consideration to "pay" for 
those permissions. Promising not to violate the copyright holder's 
rights -by promising to only use the copyrighted works as freely 
permitted by the copyright holder, is not valid consideration as that is 
a pre-existing duty.

Yes: you _C_A_N_ revoke GPL/BSD/MIT/etc permissions from free-takers at 
your will. And you should do so if that is needed for your livelihood to 
succeed.

You should do so if it is simply your want.
(And you should do so if you are attacked by those free-takers)

Do not the pennyless leaches intimidate you from making your own 
decisions regarding your work of authorship. They gave you nothing, you 
asked for nothing, they have nothing. Remember: a non-exclusive license 
is not a transfer, it is permission. Permission that can be ended at any 
time unless there exists an attached interest (ie: the other side payed 
you for a license contract)
Also Remember: The FSF has _always_ (and still does) required Copyright 
Transfers before it would accept a contribution.

And yes: I am a lawyer.

Of course: consult your local copyright attorney. Strategy is important 
in these cases. The free-loaders feel they have the 9th circuit judges 
in the bag, and that the 9th circuit will invalidate the concept of 
consideration if needed to protect the California tech industry (so 
revoke from those outside the 9th circuit first).

For easy to read by lay-people discussions on this topic:
lkml.org/lkml/2019/5/4/334
lkml.org/lkml/2019/5/3/698

For legal articles and treatises that agree: no consideration from GPL 
free-taker, no contract, revocable by the copyright holder:
scholarship.law.duke.edu/faculty_scholarship/1857/
www.amazon.com/Open-Source-Licensing-Software-Intellectual/dp/0131487876
papers.ssrn.com/sol3/papers.cfm?abstract_id=243237

Sincerely;
Pro-Bono Attorney

(Note: all discussion herein is in relevance to US law)