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The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Sunday, December 14 2003 @ 09:06 PM EST

There has been considerable FUD of late asserting that if a company inadvertently incorporates GPL code into its proprietary code, they can be forced to release their proprietary code under the GPL. This isn't new FUD. It's old FUD, but in some new mouths. Even some attorneys have been saying this in the media and at various conferences. While it's not a crime to misunderstand the GPL, and it certainly isn't rare -- a lot of people don't understand the GPL, including some lawyers -- it does arouse unnecessary fears about whether the GPL is safe to use or work with. Is it true? Can you lose your code this way? No, and the reason why it's FUD and not the truth hinges on the GPL being a license and not a contract.

A lot of the confusion about the GPL stems from this central issue: Which is it? A license or a contract? The reason that matters is because if it's a contract, then you enforce it under contract law, which is enforced state by state, and there are certain necessary elements to qualify as a valid contract. If it's a license, then it's enforced under copyright law, and that's enforced on the federal level according to the terms of copyright law, not contract law. The penalties available are not the same.

Let's analyze and see how this all relates to the recent FUD. First of all, what is a license? A license is basically just a permit, a permission to do something you otherwise wouldn't be allowed to do. When I want to go fishing, for example, I have to get a fishing license from the local municipality. That's a license, as its name implies. But why? Why isn't it a contract? Because there are no further agreed-upon promises, no reciprocal obligations. It would be a contract if I said to the owner of a pond: if you give me a license to fish in this pond, I'll give you half of all the fish I catch. In that scenario, each of us has voluntarily entered into a kind of promise. We each give the other something of value, so if I get the license and then I don't give over half of all my catch of the day, the pond owner can sue me for not living up to the terms of the contract.

Here is a definition of 'license' from Steven H. Gifis' "Law Dictionary, 2d Edition:

"LICENSE: A right granted which gives one permission to do something which he could not legally do absent such permission; 'leave to do a thing which the LICENSOR [the party granting the license] could prevent.'"

A contract, on the other hand, is defined like this: [1]

"a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. I Williston, Contracts Section 1. The essentials of a valid contract are 'parties competent to contract, a proper subject-matter, consideration, mutuality of agreement, and mutuality of obligation.' 286 N.W. 844, 846: 'a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively.' 282 P. 2d 1084, 1088. 'The total legal obligation which results from the parties' agreement as affected by law.' U.C.C. Section 1-201."

I don't have to promise anything further to go fishing after I pay for my license or sign up for it or whatever the town requires. Once I have my license, I'm free to fish, as long as I abide by the terms.

Eben Moglen, the Free Software Foundation's attorney, who is primarily responsible for enforcing the GPL, explains the difference between contracts and licenses like this:

"The word 'license' has, and has had for hundreds of years, a specific technical meaning in the law of property. A license is a unilateral permission to use someone else's property. The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property.

"A contract, on the other hand, is an exchange of obligations, either of promises for promises or of promises of future performance for present performance or payment. The idea that 'licenses' to use patents or copyrights must be contracts is an artifact of twentieth-century practice, in which licensors offered an exchange of promises with users: 'We will give you a copy of our copyrighted work,' in essence, 'if you pay us and promise to enter into certain obligations concerning the work.' With respect to software, those obligations by users include promises not to decompile or reverse-engineer the software, and not to transfer the software."

Very clear, but what about the GPL? Which is it? A license or a contract? First, the name tells you what the authors intended: General Public License. It doesn't say General Public Contract or even General Public License Contract. So they intended it to be a license, not a contract. Does it fit the definition? Professor Moglen:

"The GPL, however, is a true copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor. Copyright holders of computer programs are given, by the Copyright Act, exclusive right to copy, modify and redistribute their programs. The GPL, reduced to its essence, says: 'You may copy, modify and redistribute this software, whether modified or unmodified, freely. But if you redistribute it, in modified or unmodified form, your permission extends only to distribution under the terms of this license. If you violate the terms of this license, all permission is withdrawn.'"

Suppose a company really did mingle GPL code into a program with their own proprietary code and then distributed the merged product under a proprietary license or without living up to the terms of the GPL? Now what happens? What will the judge do now? Order the code released under the GPL over the wishes of the owner?

Stop and think. What happens if you violate the terms of a fishing license? For example, the license may restrict how much fish you can catch on a particular day or what kinds of fish you can keep, what sizes, etc. Suppose you violate the terms of the license. What happens? You lose your license to fish. There may be a fine to pay, right? That's essentially the same thing that happens under the GPL, except it's nicer, because the company gets to choose what it wishes to do under the terms of the GPL. If it still isn't resolved, and it goes to a judge, however, it's enforced as a violation of copyright law, not contract law. Here is Professor Moglen's explanation of what happens:

"Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn't say in the event of trouble "But, judge, the licensee promised me he wouldn't do what he's doing now." The licensor plaintiff says 'Judge, the defendant is redistributing my copyrighted work without permission.' The defendant can then either agree that he has no permission, in which case he loses, or assert that his permission is the GPL, in which case he must show that he is obeying its terms. A defendant cannot simultaneously assert that the GPL is valid permission for his distribution and also assert that it is not a valid copyright license, which is why defendants do not 'challenge' the GPL.

"The claim that a GPL violation could lead to the forcing open of proprietary code that has wrongfully included GPL'd components is simply wrong. There is no provision in the Copyright Act to require distribution of infringing work on altered terms. What copyright plaintiffs are entitled to, under the Act, are damages, injunctions to prevent infringing distribution, and--where appropriate--attorneys' fees. A defendant found to have wrongfully included GPL'd code in its own proprietary work can be mulcted in damages for the distribution that has already occurred, and prevented from distributing its product further. That's a sufficient disincentive to make wrongful use of GPL'd program code. And it is all that the Copyright Act permits."

So when you read people say that the GPL is perhaps not enforceable because you don't sign it or click on a form, or because of a lack of privity, or because there is a lack of consideration, or some such, you'll understand that the person misunderstood and thought in terms of contract law. It's a common error. They don't shoot you at dawn for not fully understanding the GPL. But at the same time, it's good to know that the problems people think they see in the GPL generally are the result of not understanding it, not from any weakness in the GPL itself.

Most software today is licensed to you, actually. Here are some examples of such software licenses, or just read your Microsoft EULA. The GPL is no freak of nature in that respect. The license says, in effect, I still own my own stuff, but you can use it under the following restrictions and conditions. When you buy Microsoft Windows, you don't own it. You get to use it under a license. The only part people have trouble getting their heads around is the fact that the GPL grants you additional rights, whereas most EULAs further restrict rights beyond the restrictions of copyright law, which is in essence "the power to exclude" in the first place, as the GPL FAQ explains it.

And the waters are further muddied by the fact that proprietary licenses, although named as such, really are set up more like a contract. Here is how Rod Dixon, Esq., author of the blog "Open Source Software Law" and the book by the same name, explains it:

"More specifically, the drafters of the GNU GPL have consistently viewed the GPL as a software license. This is likely to mean that a copyright holder who licenses her software under the GPL, and subsequently brings a law suit against an individual who allegedly violated a term under the GPL would sue for copyright infringement rather than breach of contract. In this case, the alleged infringer could not raise a number of defenses that might be available to someone alleged to have breached a contract. Since, generally, no one has a right to use copyright protected software except the copyright holder, the defendant cannot argue that he did not click on a consent button on a website or otherwise agree to be bound by the license. . . . As a practical matter, copyright holders often raise both types of claims in litigation: breach of contract and copyright infringement. In many of those cases, however, the copyright holder has adopted a software license that is undoubtedly meant to be a contract."

A license like the GPL, on the other hand, which is a true license by intent, and which, if you remember the original definition, is a permission to do what otherwise you could not legally do, fits the definition of license precisely. So when you hear that the GPL is viral and can force proprietary code to become GPL, which a couple of lawyers have been saying, you'll know that isn't true. If you steal GPL code, you can expect enforcement, if the violation isn't cured, but it can only be enforcement of a license, not a contract, and a forced release under the GPL can't be imposed on you under copyright law. It's not one of the choices, as Professor Moglen has explained. You do have a choice under the GPL license: you can stop using the stolen code and write your own, or you can decide you'd rather release under the GPL. But the choice is yours. If you say, I choose neither, then the court can impose an injunction to stop you from further distribution, but it won't order your code released under the GPL. This is because under copyright law, as Professor Moglen explained, your penalty is the injunction, damages, and maybe attorney's fees. Your code remains yours, as you can see, even in a worst case scenario. [2]

Of course, you could avoid all such troubles in the first place by not stealing GPL code to begin with. But if something happens inadvertently and some rogue employee sneaks some GPL code into your proprietary product, the sky isn't falling. It's a manageable risk and a solvable problem. No one wants to steal your code in retaliation or force it to be something you don't want it to be. The GPL is unequivocally a license, and that's the truth.


[1] Of course, the law isn't that easy. The book Contracts, by John D. Calamari and Joseph M. Perillo, 3d Edition, begins with this first sentence: "No entirely satisfactory definition of the term 'contract' has ever been devised." It then goes on for almost a thousand pages, trying to do so. So while acknowledging that the word 'contract' can be used loosely in various contexts to mean different things, here we are looking at the heart of the matter, not the "on-the-other-hand" footnotes that result from common law. In the broadest sense, you might even hear someone say a license is a form of contract, but that's in the footnote category, not the essence of the discussion. There are important differences between a true license and a true contract.

[2] If you are interested in further reading, you can read Moglen's OSDLposition paper or Lawrence Rosen's paper on the SCO litigation or the GPL FAQ itself, linked to in the article.


NOTE: A shorter version of this article waas published on LWN. They have kindly allowed me to republish it here on Groklaw, now that the subscription period is over, and I am publishing it in its entirety.

  


The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling | 355 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Lawyers thrive on misunderstanding
Authored by: Anonymous on Sunday, December 14 2003 @ 09:34 PM EST
The question is not wheather its being misunderstood but wheather its being
deliberately misunderstood. Lets face it, lawyers get paid to argue, having
things clearcut and well understood just dries up a market for them.

[ Reply to This | # ]

Inverse & Questions
Authored by: SkArcher on Sunday, December 14 2003 @ 09:56 PM EST
Okay, the article address the issue of what happens when GPL'd wares are taken into Proprietry Software, but the issue here is the other way around, at least as far as SCOs allegations go.

In the (hypothetical) case that there is Copyrighted, SCO written code in a GPL'd work, what happens? The Copyrights of the code owner will have been breached, without contract or license, so what damages and recourse does the plaintiff (SCO) have?

Evidently SCO feel that the individual submitting the work (IBM or one of its employees in this case) are the legally responsible party.

Obviously SCO cannot claim that the rest of the GNU/Linux project is infringing, or even actionable, but can claims be made against providers or users? Evidently SCO thinks so, witness its $699 license to use Linux.

Isn't the asking for License fees and the suing of IBM attempting payment for the same thing twice? Isn't there a law against that?

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: bbaston on Sunday, December 14 2003 @ 09:59 PM EST
Your LWN article didn't get the distribution it deserves. Can registered
GrokLawyers have your permission to distribute? Or what?

I'm so glad you donate your services to us. Your free-market hourly fee must be
approaching that of an IBM lawyer by now!

A confession: I myself have misinterpretted the GPL as a Contract, back in the
distant past. Must go to correct certain old text on my sites ...
------
Don't forget the Make a Donation button, folks!


---
Ben B
-------------
IMBW, IANAL2, IMHO, IAVO,
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold,

[ Reply to This | # ]

Kind of Amazing
Authored by: Rhys Weatherley on Sunday, December 14 2003 @ 10:12 PM EST
I always find it kind of amazing that so many lawyers misunderstand the GPL, especially since it is their *job* to understand the nuances of different words like "license" and "contract".

I was one of a number of open source developers at a legal conference a year ago, presenting our side of the FOSS story. And I was struck by how many of the lawyers kept insisting that the GPL must be a contract, and that if it isn't then it couldn't possibly be valid. And these were IP lawyers!

Then I realised why: they are used to giving their services to proprietry software firms who want to "protect their IP from being stolen". So every day these lawyers are looking for ways to enforce contracts between vendors and customers to maximize the "protection".

A EULA is a disguised contract, with the license part used merely as a legal device to force the customer to agree to the contract: "Click the button and agree to the contract or we sue you into oblivion for copyright infringement!".

Many IP lawyers are so used to constructing contracts and disguising them as licenses, that they sometimes cannot grasp that licensing done properly doesn't need such deception.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Sunday, December 14 2003 @ 10:34 PM EST
I just mentioned this under an earlier story today, but here goes again:

In his Open Letter Darl McBride claimed that the provisions of the GPL are
Unconstitutional, yet as Linus
discovered for himself, the barter for an exchange of copyright is contained in
the fundamental definition of terms in 17 USC:

"I ended up looking up the exact wording of the US copyright law for
the definition of 'derivative', and guess what I find a few lines below it:

The term "financial gain" includes receipt, or expectation of
receipt, of anything of value, including the receipt of other copyrighted
works."

Darl also makes the argument that unless SCO Group are allowed to exploit the
pre-existing GPL'd software, the proprietary software industry will somehow be
harmed or destroyed. He mentioned Eldred v. Ashcroft as if it somehow applied.

It just so happens that the Supreme Court looked at derivative works, and a
simialar claim made by members of the Motion Picture Industry in Stewart v
Abend. Justice O'Conner wrote for the majority:

"In fact, this Court has held that a copyright owner has the capacity
arbitrarily to refuse to license one who seeks to exploit the work."

That means a copyright can be used as an affirmative defense
against commercial exploitation - without violating the US Constitution - what a
wonderful concept!

---
Thou shalt foreswear, renounce, and abjure the vile heresy which claimeth that
``All the world's a VAX''.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Sunday, December 14 2003 @ 10:46 PM EST
Great article. Could someone please clarify the following: "The GPL, however, is a true copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor. Copyright holders of computer programs are given, by the Copyright Act, exclusive right to copy, modify and redistribute their programs. The GPL, reduced to its essence, says: 'You may copy, modify and redistribute this software, whether modified or unmodified, freely. But if you redistribute it, in modified or unmodified form, your permission extends only to distribution under the terms of this license. If you violate the terms of this license, all permission is withdrawn.'"

Specifically the line: But if you redistribute it, in modified or unmodified form,A your permission extends only to distribution under the terms of this license..'"

I don't know why but I don't seem to fully understand just what this means. Could someone explain it at length.

Also, I have been curious about the Free Software movement, GPL and similar movements, licences for some time. I would like to read more about it's history, specifically any history or information concerning the conception and drafting of the GPL itself. It seems to me to be an extraordinarily prescient and powerful document, essentially creating/ preserving a co-operative community based on mutual association and shared values and handily weathering a myriad of corrosive economic and legal forces. Any additional sources on similar licenses accesible to the layperson would be appreciated.

[ Reply to This | # ]

Misappropriated GPL Code
Authored by: Weeble on Sunday, December 14 2003 @ 10:51 PM EST
It's interesting this came up now--I was just thinking about this issue a day
or so ago and while I didn't have all the legal insights of the article (after
all, IANAL), I came out at basically the same place.

If you misappropriate GPL code into a proprietary product and get caught, you
have several choices, among which include;

1) release the product under the GPL. It's an option, but as the article
states, it's not a requirement--you just have to choose another valid option if
you don't.

2) remove the GPL'ed code and do either 3) or 4).

3) replace the code with code that is in the public domain or released under a
less restrictive license (such as a BSD license).

4) WRITE YOUR *OWN* DANG CODE!

One thing not noted in the discussion is that it's the public nature of GPL'ed
code that makes it even an issue to talk about. Apart from that, the issues are
basically the same as if the misappropriate code was proprietary.

For example, take the GIMP (GPL, I think) and Adobe Photoshop (proprietary). If
one wanted to misappropriate graphics code to shave off development time to make
up for too many extended coffee breaks, Adobe Photoshop source code is simply
not available to misappropriate (unless one had a friend who worked for Adobe
and was willing to smuggle it out). Only the GIMP's code is even out there
(legally, anyway). The penalties for misappropriating code and the options for
remedy are basically the same, it's just that the opportunity is more likely
with GPL code.

BTW, have SCO's FUDdites propagated the "viral" theory? It might be
interesting to see their reactions if one asked them in response,
"Considering you are using Samba and other GPL'ed software in UnixWare,
does that mean that UnixWare is now a GPL product?" (I know it doesn't
since the only *known* GPL code in UnixWare is as separate packages bundled with
it, but it might be funny to see their reactions.) <GGGG>

---
"Every time I think I've heard it all from SCO, they come
up with a new howler." Steven Vaughan-Nichols, eWeek

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: olly on Sunday, December 14 2003 @ 11:24 PM EST
I think another way of saying this, is to say: if somebody inappropriately uses
your GPLed code, you don't in fact sue them for "violating the
GPL". You sue them for using/distributing your copyrighted work without
permission.

Technically in the case of straight-forward "violation" you don't
even have to mention the GPL! You just say: you've used my copyrighted work,
what had given you the right to do so? It is the other party which would (maybe)
mention GPL, and then you say, "sorry, you did not abide by the license
rules, so it does not apply". End of story.

IANAL, but it seems that it is technically incorrect to say that
somebody/something violates a license, at all. You cannot violate a license, but
you can do something the license does not entitle you to. Something else may or
may not entitle you to it, but if not, and if by doing it you violate my
property rights, well, you violate my property rights.

This makes a license clearly different from a contract, because you can violate
a contract, of course.

Is my interpretation correct?

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Sunday, December 14 2003 @ 11:39 PM EST
Personally,

I feel that the GPL is a hybrid license/contract. Why? If you make changes to
the program you *must* release those changes to the public. That's a
contractual obligation in my eye.

As to the GPL, I personally believe that it should be flashed on screen with a
Agree button before install can proceed. Pretty much every other 'license'
agreement does this. The GPL is the only one that I can think of that
doesn't...

That said I like the GPL and what it stands for. It's realistically the best
way of helping to move us forward.

Dave

[ Reply to This | # ]

Derivative Works
Authored by: Anonymous on Monday, December 15 2003 @ 12:06 AM EST
IMO, where the GPL is confusing (to me at least) is not the license itself, but
where it delves into dealing with derivative works. I could never get a
complete handle on this part of the GPL, and if you and/or Eben could do a
follow-up article down the road laying that out in layman's terms, that would
be great. The parts dealing with derivative works seem to be a bit of a grey
area.

PS - Another excellent article.

---
In matters of style, swim with the current, in matters of principle, stand like
a rock.
--Thomas Jefferson

[ Reply to This | # ]

Primary sources for Moglen quotes?
Authored by: Anonymous on Monday, December 15 2003 @ 12:33 AM EST
Hi PJ, very interesting! Do you have any URLs for the
snippets you've posted from Eben Moglen? I'd be interested
in reading the whole thing.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: eric76 on Monday, December 15 2003 @ 12:50 AM EST
The reason that matters is because if it's a contract, then you enforce it under contract law, which is enforced state by state, and there are certain necessary elements to qualify as a valid contract. If it's a license, then it's enforced under copyright law, and that's enforced on the federal level according to the terms of copyright law, not contract law. The penalties available are not the same.

Hmmm. It because quite apparent in mid-June or before that this was a contract dispute, not a copyright dispute.

So why isn't the case in state court instead of federal court?

[ Reply to This | # ]

More alike than you think
Authored by: tallfred on Monday, December 15 2003 @ 01:00 AM EST
Why don't people realize they can buy licenses from the authors of GPL code
just like they can from non-GPL vendors. I have first hand experience with this
happening several times. The GPL authors are generally *much* cheaper too.

[ Reply to This | # ]

OT: Googling for 'sco linux'
Authored by: belzecue on Monday, December 15 2003 @ 03:25 AM EST
I dream of the day when I google for those two keywords and up pops Groklaw as
the top ranking hit, knocking off SCO themselves :-)

In terms of rising popularity, the result listed at number ten caught my eye.
It is a page devoted to transitioning between SCO and linux:

http://www.aplawrence.com/Linux/scolindiff.html

"SCO/Linux Transition Guide, September 2000, by Tony Lawrence"

Questions answered include:

* How can I mount a SCO file system in Linux or vice-versa?

* How can I transfer SCO accounts (passwd information) to Linux?

* Can Linux run OSR5 binaries?

I just find it curious that an article circa 2000 is number ten in Google
popularity for 'sco linux'. I wonder if it has only recently become so
popular, with admins scrambling to get their stuff off SCO unix and onto linux.
Bear in mind, though, that the material caters for transitioning from SCO to
linux and vice versa -- there is no bias.

Maybe if all Grokkers visit the site right now we can bump it up to number 2 ;-)

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 04:26 AM EST
I am kurtsam but can't log in.

A swedish firm MySQL has had a case in US court to force a USA firm to put their
part of a program that used MySQL GPL licenced library under GPL. The court
did't question the validity of the GPL license and that MySQL was right.

[ Reply to This | # ]

PJ, an extension to this article would cover "the Preamble"...
Authored by: Anonymous on Monday, December 15 2003 @ 08:16 AM EST
PJ,

Wonderful explanination.

Now, for more! "The preamble to the GPL", that LINUS TORVALDS
wrote, that applies to LINUX (and how it applies to developers of user
applications for LINUX) is confusing to many! There is an ongoing and
extended debate over where the boundries of the preamble are! Linus has wrote
about it here and there (however, even when he is done some folks are still
confused).

SO, an article where you (GROKLAW) explore how LINUS's preamble affects the
LINUX GPL would be a wonderful addition to your already impressive body of
work!

-----------------------------
Linus Torvalds quote from Open Sources: Voices from the Open Source Revolution,
1st Edition January 1999, The Linux Edge, by Linus Torvalds,
http://www.oreilly.com/catalog/opensources/book/linus.html :

"We ended up deciding (or maybe I ended up decreeing) that system calls
would not be considered to be linking against the kernel. That is, any program
running on top of Linux would not be considered covered by the GPL. This
decision was made very early on and I even added a special read-me file (see
Appendix B) to make sure everyone knew about it. Because of this commercial
vendors can write programs for Linux without having to worry about the
GPL". [end quote]

Here from the appendix B of the book is the reading of the Linux GPL preamble
(found at http://www.oreilly.com/catalog/opensources/book/appb.html ):

"NOTE! This copyright does *not* cover user programs that use kernel
services by normal system calls--this is merely considered normal use of the
kernel, and does *not* fall under the heading of "derived work."
Also note that the GPL below is copyrighted by the Free Software Foundation,
but
the instance of code that it refers to (the Linux kernel) is copyrighted by me
and others who actually wrote it.

Linus Torvalds " [end quote]
--------------------
NOTE: some readers of GROKLAW have posted some links in the past that apply to
the above (and that the preamble to the GPL, that LINUS wrote, is NOW worded a
bit differently AND APPLIES TO A SPECIFIC VERSION OF THE GPL. A link to the
current preamble is found in the GROKLAW legal links under the area titled
"GPL".
http://www.groklaw.net/staticpages/index.php?page=legal-links

[ Reply to This | # ]

Clarification: Permission to Use
Authored by: Anonymous on Monday, December 15 2003 @ 08:28 AM EST
Since, generally, no one has a right to use copyright protected software except the copyright holder,

This isn't quite correct, though it's one of the things that commercial software vendors (esp. Microsoft) would like you to believe. The owner of a copy of software has the right, under both US and Canadian copyright law, to install & use that software on a computer without requiring the permission of the copyright holder. See Title 17 117 (a) of the United States Code; and R.S. 1985, c. C-42 (the Copyright Act) 30.6 of Canadian law.

Note the key difference is that Canadian law explicitly states that only installation on a single computer is non-infringing, while the American law doesn't specify a number. This would seem to suggest that the practice of software activation (limiting the software to a fixed number of computers, typically one) may be illegal in the United States when exercised against the owners of copies of software (i.e. retail purchases, where the purchase doesn't even involve the author of the software).

Not to mention the implications for the assertions by the commercial vendors that their EULAs are binding upon you just by your act of installing the software.

(Sadly, software activation is becoming more prevalent as an "anti-piracy" measure; however, it should be noted that Microsoft distributes activation-free versions of Windows & Office in Thailand, where the piracy rate is an estimated 77%.)

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 08:41 AM EST
Does IBM have a SysV contract with SCO or is it just a SysV license? If so, what
are the implications for the SCO vs IBM case.

If they misunderstood the GPL, they very well may have misunderstood the SysV
License (if its not a contract)

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: rsmith on Monday, December 15 2003 @ 09:12 AM EST
Excellent work as usual PJ.

This article should be required reading for any journalist covering this matter.
It should be spread far and wide, to stop the FUD dead in it's tracks.

Are there any groklaw readers with contacts in the technical and mainstream
press? You might want to give your contacts a hint about this.

<ducks>Maybe even post it on /. (the complete story, not a
link)?</ducks>

---
Confucius say: It is impossible to sling mud with clean hands.

[ Reply to This | # ]

The Problem: "Derrivative Work"
Authored by: Anonymous on Monday, December 15 2003 @ 10:47 AM EST
I found this article informative, but one case is still a little unclear to me:
can 'derrivative works' be forced to be GPL'ed? Part of the problem, in my
eyes, hinges on what *is* a 'derrivative work' in terms of computer code? This
becomes very, *VERY* murky. Because, if someone makes the case that my code is a
derrivative of GPL'ed code, then I have NO other ability to distribute my code
than under the GPL. So, *CAN* code be forced to be GPL'ed if a court decides it
is a derrivative work?

Or does it just become 'dead' code, where I as the author of the
'derrivative' have no right to distribute it, but no-one else has rights to
distribute it either?

The reason I bring this up is that the definition of derrivative work, as it
applies to computer programs, seems to be largely undefined currently. I mean,
if I incorporate your code into my program directly through compilation, or I
just modify your code and recompile it, it's obviously a derrivative work. But
the GPL claims that if you dynamically *LINK* against a library, your code is
now a derrivative work (a view of derrivative work that I find intensely
abhorrant, btw - consider that if that definition of derrivative work were
adopted by the courts, that all programs would then be defined as derrivative
works of the standard libraries for the platform they were developed on -
something I think no sane person would agree with).

Also, I remember seeing a thread on LKML recently about whether or not
dynamically loadable kernel modules (e.g. device drivers and filesystem drivers)
are derrivative works. In the case of kernel modules, apparently they usually
have to have some sort of code compiled into them that is inlined from a header
file in order to work, so I suppose from that sense, they are derrivative works.
But assuming that you could write a kernel module that just made calls to
functions that the main kernel exported, would your module *really* be a
derrivative work? I think in that case, where you have clean calling semantics,
and your code is distinct, and able to be distributed seperately from my code,
it probably should not be considered to be a derrivative.

So, what happens to code in murky cases like these, should the courts decide
that they *are* derrivative works? Are they forced to be GPL? Or are they simply
'dead' if the author of the 'derrivative work' decides they don't want to
allow it to be distributed under the GPL?

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: RealProgrammer on Monday, December 15 2003 @ 11:47 AM EST
I've been hacking away at free software since the mid-80's. I first read the
BSD license attached to 4.2 BSD, and liked that a lot. I didn't like the GPL
when I first read it, because I found it confusing; that meant I couldn't trust
it.

Recently I read something from Linus Torvalds that cleared it all up for me. He
was talking about whether someone could write software that used the C language
"#include" directive to incorporate Linux kernel header files into a
non-GPL program. After all, wouldn't that fall under fair use, and doesn't
the GPL allow anyone to use your software?

I'll paraphrase and condense: you can use the Linux kernel binary for any
purpose you wish, from running a nuclear submarine to developing proprietary
software. But if you use the Linux source code, even by including the Linux
kernel header files, you may only publish your program under the GPL.

If you want to release under some other license, don't incorporate his
copyrighted work (making yours a derivative work). Would you let someone else
freely use your closed, proprietary copyrighted source code? Tautologically,
no, so don't expect to use GPL'd code as if it were your own.


---
(I'm not a lawyer, but I am a literate citizen)

[ Reply to This | # ]

AT&T/SCO Unix License is Viral!!!
Authored by: thundr on Monday, December 15 2003 @ 12:04 PM EST
Isn't the viral nature of the AT&T/SCO Unix license what this case is all
about. IBM created derivitive works based on Unix. According to SCO, these
derivitive works (JFS, NUMU, RCU, ect) are covered by the original Unix license.
Therefore, because these works are derivitive works and covered by the orginal
license, IBM can not give them to Linux, and therefore IBM owes SCO a big pile
of money.

How is this differnt than the GPL?

Forgive me if this point has been made, but I haven't seen it, and I think we
should be screaming it from the tallest mountin. Almost all licenses are
"viral" in that they control what you can do with the dervitive
code. The only solution is to write all your own stuff, or pay the licensee's
fee (whether it be money or freedom).

[ Reply to This | # ]

The US vs European vision on the GPL
Authored by: BsAtHome on Monday, December 15 2003 @ 12:40 PM EST
There have been a lot of good comments here, but I miss one distinction. Europeans see things differently. Eventhough the SCO case plays in the US, I think it is good to look across the pond (where I live).

From http://theregister.c o.uk/content/archive/32272.html:

... Which brings us to the most important social contract that the logician US culture has ever allowed to be tolerated: the GPL, or General Public Licence. This is a quasi-legal document, but it's great strength is the social obligations it bestows on its participants.

The greatest strength of the GPL is that it's a social contract, one that makes the most powerful, who can buy the legal system, think twice before going to law. And that's pretty powerful. ...

This story makes it clear that there is a social obligation in the GPL, seen with (my) european eyes. This, in my humble opinion, is the most powerful thing in the phrasing of the GPL. I would wish that US folks could see things more differentiated and not go to court for stupid reasons.

That are just my two cents...

BS

---
SCOop of the day, Groklaw Rulez

[ Reply to This | # ]

What would Ben Franklin do?
Authored by: blang on Monday, December 15 2003 @ 03:16 PM EST
As maybe the most influential and pragmatic politician in forming the
constitution, here's how Franklin dealt with Intelectual property. This
offered as an antidote to Darl "Scrooge" McBride's attempt to
deconstruct Intellectual property. I have a feeling Ben Franklin would have
been a keen contributor to groklaw had he been around today.

<a
href="http://inventors.about.com/library/inventors/blfranklin_inventions.h
tm">Benjamin Franklin Inventions</a>

Fireplaces were the main source of heat for homes in the 18th century. Most
fireplaces of the day were very inefficient. They produced a lot of smoke and
most of the heat that was generated went right out the chimney. Sparks in the
home were of great concern because they could cause a fire that would quickly
destroy the homes, which were constructed mainly with wood. Benjamin Franklin
developed a new style of stove with a hoodlike enclosure in the front and an
airbox in the rear. The new stove and reconfiguration of the flues allowed for a
more efficient fire, one that used one quarter as much wood and generated twice
as much heat. When offered a patent for the fireplace's design, Benjamin
Franklin turned it down. He did not want to make a profit. He wanted all people
to benefit from his invention.


[ Reply to This | # ]

Comparing Linus' Copyright Law observation
Authored by: markhb on Monday, December 15 2003 @ 04:04 PM EST
This whole License v. Contract thing brings my mind back to Linus' observation on U.S. copyright law, discussed at
http://www.gro klaw.net/article.php?story=20031205135223118.
The thing that concerns me is, if this is true:
"Why isn't it a contract? Because there are no further agreed-upon promises, no reciprocal obligations." (from the article above)"
then this definition of "financial gain" from copyright law doesn't apply:
"The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works."(17 USC, quoted by Linus).

Effectively, since there is no guarantee that I, as a user, will distribute or extend any given GPL'd program (i.e., I very well might just use it for myself), the author can't have a reasonable "expectation of receipt" of anything. So, where does that put us w/r/t Darl's attacks on the GPL?

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 04:25 PM EST
The paralegal got it 1/2 right. There is a difference between a contract and a
license, however, the GPL is both.

A license is one thing : permission to use something that isn't yours.

A contract is a set of obligations for two or more parties.

a EULA is a license, given if you comply with the terms of the contract (pay,
release code into the GPL).

The license is revoked if you fail to comply with the contract.

But the license is the permission, not the terms.

He is correct, that you would try to suesomeone under copyright law, rather than
contract law, but this has nothing to do with which laws are applicable : both
are.

However, the remedies available under copyright law are much more stringent, and
therefore more useful.

Under contract law, pretty much all you can get are recouped losses, and a
nullification of the contract.

In the case of the GPL, the losses are nothing, since nothing was paid, and the
nullification of the contract just revokes the license. That gets you back to
use of the content without a license, which is handled under copyright law.

[ Reply to This | # ]

Viral issue analysis
Authored by: RichMan on Monday, December 15 2003 @ 05:02 PM EST
Has the contents of the NDA under which SCO allowed people to look at their
"proof" of copying been made public?

I believe that a good analysis of that NDA would show that it was much more
viral, restrictive of what someone could do in the future, than the GPL license
on Linux. And this was an NDA just to have code pointed out that was already
visible in Linux.

Typically the NDA would say that SCO would own any work that person did on any
kernel type code at any point in the future. So by signing the NDA with SCO to
look at publically available Linux code you were tainted to the point of being
unable to work. Now that is viral.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 05:07 PM EST
How does one "steal" GPL'd code?

[ Reply to This | # ]

Difference can be irrelevant
Authored by: Anonymous on Monday, December 15 2003 @ 05:44 PM EST
You say sure, GPL is a license, you never agreed to a contract, so there's no
"specific performance" that a GPL owner can demand of you. However,
distributing under the GPL requires acceptance of its terms (it says
"license agreement" right near the top), and you express your
agreement by distributing the code. If you distribute without agreeing to the
terms, you're liable for potentially massive damages for copyright
infringement, maybe even jail time (DMCA, NET Act). So sure, you're not
-forced- to release your code since you can choose the option of paying massive
damages or going to jail instead (in addition to being enjoined from further
distribution, as practically goes without saying). In practice, you may not
really have a choice except release the code.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 06:05 PM EST
Read through the top lvl comments and I found several things I believe to be
wrong or misconceptions. Some are slight, some have been posted in specific
replies. But, I wanted to list them together.

[options when caught violating GPL, pick one]
1) release the product under the GPL.
..
3) replace the code with code that is in the public domain or released under a
less restrictive license (such as a BSD license).
4) WRITE YOUR *OWN* DANG CODE!
you forgot
[5) Stop distribution, which btw is what SCO should be doing with their
LinuxDistro cause they can't have it both ways GPL valid / GPL invalid]

In addtion to any of those, possible pay damages.

--

"If you make changes to the program you *must* release those changes to
the public."

This is SO NOT true, a common misconception and the basis of much PHB fear. [by
the GPL] You are NEVER forced to distribute/release code you create, NEVER. If
you choose to distribute your code that is derived from or 'used with' GPL
code (something which you are NOT NORMALLY ENTITLED to do) then the GPL states
you may, but you must put your code under the GPL as well.

I can take GPL and do what I want with it on my own computer. Outside my
computer, I can even contradict the GPLicense terms so far as as the Fair Use
rights allow me. (Barring EULA and other contractual terms) I can do the same
thing with WindowsXP or "Snow White and the Seven Dwarves".

--

"Since, generally, no one has a right to use copyright protected software
except the copyright holder,"

Don't forget fair-use rights, which often are. Much to the public's
detriment.

--

"How does one "steal" GPL'd code?"

By violating the license terms of the GPL when 'using' that code.

--

Finally, I took the 'viral' to be referring to the fact that... If I GPL my
code or contribute to GPL project I am assured that code base will remain GPL,
that other's contributions will fall under the GPL and that no one can legally
'grab' that code and distribute it (modified or not) with non-GPL license. In
other words it enforces share and share-a-like and this enforcment spreads
virally to any code that is distributed with GPL code (for as long as it is
distibuted)


Remember you have rights. Use'm or loose'm,
norm

[ Reply to This | # ]

One other option for reproducing GPLed code
Authored by: Anonymous on Monday, December 15 2003 @ 06:19 PM EST
IANAL--- It is worth noting that if one wants to use GPLed code ing a commercail product there is an option not discussed above. You may, if the copyright holder is so inclined, arrive at a license other than the GPL.

Example:

Bob writes the program Foo. Bob then releases the program Foo under the GPL. Fred wants to incorporate Foo's Baz function code into his company's product Bar. So Fred reaches and agreement with Bob, where Bob licenses Fred all or some of Foo in exchange for one-Meeeillion dollars.

There is not provision in the GPL that say that you can exclusively release under the GPL. Now in Real Life, you have to be the copyright holder of all aspects of the code to be re-licensed. The majority of programmers that license under the GPL are likely to be resistant to any other arrangment.

This is explained pretty well at CreativeCommons.org.

Spyder

[ Reply to This | # ]

Damages?
Authored by: Anonymous on Monday, December 15 2003 @ 07:09 PM EST
How does one go about calculating the damages in the absence of cross-licensing?
Couldn't the defendant argue that, since the code is otherwise available at no
charge, the revenue lost by the plaintiff is effectively zero?

[ Reply to This | # ]

  • Damages? - Authored by: Anonymous on Tuesday, December 16 2003 @ 05:46 AM EST
    • Damages? - Authored by: Anonymous on Tuesday, December 16 2003 @ 06:30 AM EST
    • Damages? - Authored by: Anonymous on Tuesday, December 16 2003 @ 12:15 PM EST
The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 15 2003 @ 11:08 PM EST
I agree that the GPLed tools used in commercial *nix are not distributed in
violation of the GPL. However, the quote I provided from Justice O'Connor would
seem to indicate (again, IANAL) that the authors of GPLed software can revoke
those companies' distribution privileges, *regardless* of whether this
distribution is in violation of the GPL.

I also agree that a lawsuit against SCO based on this idea would be detrimental
to the currently ongoing cases and the FS community at large. However, this
could be leveraged against SCO in a number of ways that do not necessarily
involve the courts. Imagine if the maintainers of GCC sent a letter to SCO
revoking their privilege to distribute GCC with SCO Unix, and then proceeded to
send letters to the 1,500 most prominent corporations using SCO Unix demanding a
$699 license fee to continue using SCO Unix with GCC.

Just kidding. Bad long-term consequences for this precedent: many. But,
certainly there is some way that this could be used, assuming my wild guesses
are right, that will advance IBM's chances in the current suit.

[ Reply to This | # ]

I'm not sure I agree...
Authored by: Anonymous on Tuesday, December 16 2003 @ 12:28 AM EST
I thought (e.g. http://www.duhaime.org/dictionary/dict-l.htm) that a simple
license (without the consideration on both sides that would constitute a
contract) was revocable at will.

This is because it's basically a promise not to take action against what would
otherwise be a trespass/tort against me. But without some mutual consideration,
it is a well-established principle of common law that I cannot be held to a
one-sided promise. If I promise to give you $5 tomorrow, I can change my mind
tonight and there's nothing you can do. Unless that $5 was in exchange for
something you did, or promised to do. Even if you haven't done your side yet,
you can still enforce the contract as long as the elements of offer, acceptance,
and mututal consideration are present.

So a license can form part (or all) of the consideration on one side of a
contract, but it's a very different sort of thing. (And I agree that the
proprietary software use of the term tends to be misleading.)

Now the GNU GPL, while it is a simple one-sided license in some areas (e.g.
making verbatim copies, modifying but not distributing the subject program),
imposes obligations in others.

Most clearly, if the option to distribute binaries without source is accepted,
the distributor has an obligation to make the source available for a nominal fee
for a period of three years.

The exact boundary between a one-sided license and a two-sided contract can be
distinctly fuzzy (I give you permission to come though my front door vs. I give
you permission to enter my house if you agree, in consideration of such
permission, to use the front door and not enter via the roof, windows, walls, or
other area not designed for the purpose), but I think at least some portions of
the GNU GPL clearly cross it.

The GNU GPL clearly does hope to gain access to other people's copyrighted
works, and as Linus' research pointed out, the U.S. copyright laws clearly
consider this to be a form of valuable consideration.

This is all a layman's view of things, but it seems reasonably clear. The main
fuzzy point is the boundary between licesne and contract, which I assume has
been litigated in the past when person A attempted to revoke B's license and B
claimed that it was a contract and not revocable. So perhaps someone can shed
more light in that area?

[ Reply to This | # ]

License Cancellation
Authored by: Anonymous on Tuesday, December 16 2003 @ 04:49 AM EST
I read an Australian legal opinion saying very similar things: the GPL is _not_
a contract. Therefore, the copyright holder can cancel the license at any time
(since the holder is not bound by any contract with the licensee(s)).
Of course the FSF isn't going to cancel licenses (I hope) but other entities
might not be so scrupulous. Is this accurate (under US and other, eg. UK, law)?

[ Reply to This | # ]

RPL SleepyCat, ... ???
Authored by: Anonymous on Tuesday, December 16 2003 @ 08:45 AM EST
While most may be comfortable with OSS/FS or FOSS - free software under the GPL & LGPL along with software under various approved open source licenses there are some potential surprises.

The OSI approved SleepyCat license is used with a number of software projects including XAO Apache Web Services and the very widely used dual licensed Berkeley DB software products. The WayBackMachine has a WinterSpeak interview from 2001 with Sleepycat President & CEO, Michael Olson on How to make money with the GPL ...

Berkeley DB is embedded in network infrastructure products like routers and switches, DNS and Web content caches, email servers and clients, ... Companies like Cisco, Sun, HP, IONA, Amazon and Sendmail use Berkeley DB. Open source projects like Cyrus, Squid, RPM, Postfix, and MySQL include it.
With just a few very limited exceptions SleepyCat license payment may be required should one "redistribute" the Berkley DB software, even when just done internally.

The OSI approved Reciprocal Public License (RPL) while used infrequently is reportedly more viral than GPL, actually extremely viral per Technical Pursuit which dual licenses Tibet potentially requiring payment under TPL Biz licensing when not in compliance with RPL.

Are there other projects, licensing & circumstances of note that might be similarly surprising or problematic to OSS/FS users ???

[ Reply to This | # ]

A Grain of Salt...
Authored by: Anonymous on Tuesday, December 16 2003 @ 10:46 AM EST
Take this with a grain of salt. I was interested in this for a couple of reasons:

  1. As a part of my job I work with a lot of open source.
  2. Part of the source of one of my company's products had to be released because it had incorporated some GPL'd code.

So, I sent a link to this article to one of my company's IP attorney's to get her opinion. I'm not going to post the entire reply, but her reply start "This is truly scary.." Later she add "Suffice it to say that I believe this analysis is a wee bit off the mark."

Therefore, my advice is take this all with a grain of salt.

[ Reply to This | # ]

The GPL is a License-type Contract.
Authored by: Anonymous on Tuesday, December 16 2003 @ 01:13 PM EST
It is perhaps better to say that nearly *all* licenses
with restrictions involving consideration can form a
contract.

"I allow you to do X, provided you do Y."

The implied contract has "you do Y" as consideration
to me, and "you do X" as consideration to you.

In the GPL, the "you do X" part is clearly consideration.
The "you do Y" part can only possibly be consideration
under some circumstances, namely those in which you have
created a derivative work, because only in those
circumstances do you have anything of value to offer.
Even then it might not be a consideration because the
derivative work is, unless it falls under fair use rights,
*illegal to publish* without my permission, until my
copyright expires!

So in states where consideration is necessary for a
contract, the GPL usually isn't a contract, and may never
be a contract, depending!

Well, suppose we're living in a state where consideration
isn't necessary. There's definitely an offer (the text).
Acceptance is by acquiescence, as the text and preamble of
the GPL describes, which is perfectly legitimate. So
perhaps it is a contract.

Or perhaps it is a contract in some states and not in
others. (It's better if it's irrevocable, of course, and
if whether it's a contract matters to this, I hope it's a
contract for that purpose. But I think there are
restrictions on revoking even a revocable license, and I'd
love to see some legal references about that.)

But the issue of contract *only* comes up if one party is
alleged to have *broken* the contract. If someone --
let's call them "SCO" -- distributes their copyrighted
material under the GPL and then tries to revoke it, this
would come up if SCO was sued for failing to fulfil their
obligations under the contract.

However, it is very hard to see how the *other* party, the
copyright holder who first issued their work under the
GPL, could ever have a useful case for breach of contract,
since copyright violation claims are *much* stronger and
carry heavier and more certain penalties.

In a copyright violation case of this sort, the recipient
might claim that they had the right to do what they did
under the GPL (as a contract).

But since the recipient would be in breach of contract,
the copyright holder could request and receive "restitutio
in integrum" (http://www.duhaime.org/dictionary/
dict-qr.htm#R), wiping out the contract and leaving the
copyright violation.

[ Reply to This | # ]

You can't give permission to don't have the authority to give.
Authored by: jbn on Tuesday, December 16 2003 @ 02:51 PM EST

First, there is another essay worth reading on this topic. It, unfortunately, does not differentiat e between the Free Software and Open Source movements. Some of the hypotheses of this later essay might not apply outside Australian copyright law (hardly the author's fault), but it is interesting nonetheless. In fact, this essay points out an advantage to buying Free Software and how clause 11 of the GNU General Public License (GPL) might not be enforceable everywhere the GPL is used.

Second, I think there is an ambiguity in the thread that deserves addressing--what do you mean by 'using' a computer program? To a lot of people, this means merely running the program (execution of the program's instructions). To programmers this term might also include using portions of the program's source code in another program (also jokingly referred to as 'cannibalizing' a program; humorous because this doesn't hurt the program that is cannibalized even though the term suggests otherwise).

If we're just talking about execution, it's worth recalling a theme of the article--for the most part, the GPL leverages behavior that copyright law regulates. That is one of its strengths. One of the complaints the Free Software Foundation had with older versions of the Apple Public Source License (APSL) had to do with placing terms on activities not regulated by copyright:

At a fundamental level, the APSL makes a claim that, if it became accepted, would stretch copyright powers in a dangerous way: it claims to be able to set conditions for simply *running* the software. As I [a GNU project worker with username sinuhe] understand it, copyright law in the US does not permit this, except when encryption or a license manager is used to enforce the conditions. It would be terribly ironic if a failed attempt at making a free software license resulted in an extension of the effective range of copyright power.

Consider part of Rod Dixon's quote from the essay at the top of this thread:

Since, generally, no one has a right to use copyright protected software except the copyright holder, the defendant cannot argue that he did not click on a consent button on a website or otherwise agree to be bound by the license.

And we see a conflict. If copyright law doesn't regulate execution of a computer program outside of a license manager or encryption (neither of which are the norm), how can Apple stop you from executing APSL-covered software if you violate the APSL? Apple would have to get you to sign a contract to pull this off. There are certain US copyright powers relevant to computer programs: copying, modification, and distribution. Use (meaning execution) of a program is not something one can prohibit with a copyright license.

In other words, you can't grant or withhold permission you don't have the authority to give. If copyright law doesn't require me to get permission from a copyright holder to execute the copyrighted program, a copyright license cannot grant that permission to me nor can it take the permission away from me if I do something prohibited by the license. Since the FSF knows that judges bend over backwards to see things according to the copyright holder's wishes, and because copyright law is in part built up from case history, we can understand why the FSF would fear Apple's attempt to stop people from even executing APSL-covered programs if they violate the APSL.

I'm not sure why the FSF took this language out of their current opinion of the APSL. The same problem exists in version 2.0 of the APSL in section 12.2 (Effect of Termination) and Apple describes other sections in terms of using APSL-covered programs.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Tuesday, December 16 2003 @ 04:57 PM EST
I have no legal expertise but I think I can say that the GPL is not a contract
in English law because a contract requires some kind of payment. If you purchase
a software licence then there is a legal contract between the two parties
involved. (In fact there is a whole chain of contracts back to copyright
holder.) In the case of the licence to fish in a certain pond, if you paid for
the licence then you could sue the seller if the pond did not actually exist. If
fishing licences were like software licences then they would say something like:
? No warranty is made concerning the quantity or quality of water in the pond or
the presence of fish.? If the pond turned out to be unfishable, I would think
that an English judge would declare the contract void as no statement regarding
the ?quality? of the fishing could justify the absence of fishing. It would be
interesting to see what would happen if some of these software ?licences? were
brought before an English court.

I am sure that if an English judge was presented with the GPL he would say that
it was a perfectly clear document written in plain English and none of the words
should be interpreted in any other way than as given by their normal everyday
meaning.

The idea that the GPL is ?unconstitutional? conjures up a nightmare scenario of
a Supreme Court packed with big-business appointees with armed police breaking
down doors to confiscate the computers of hapless free-software programmers who
are then dragged before the courts and forced to plead guilty to using ?{? (c)
SCO via AT&T or face trial for writing ?anti-competitive? software (minimum
penalty 300 years to life).

[ Reply to This | # ]

GPL and Kiosks
Authored by: mjscud on Tuesday, December 16 2003 @ 11:42 PM EST
A question: Is a whole system a work? If the company I work for were to create
and sell a kiosk or a handheld that ran Linux as an operating system, it would
contain Linux as a whole. Would it be "a work containing the
Program" in the words of the GPL? Does that then mean that, in order to be
able to use Linux in our product, we would need to provide source for all the
code we ran on a computer using the Linux OS?

A kiosk is owned by the vendor but used by the public. Does the placing of the
kiosk in a public space involve distributing a work to the public, or just to
the vendor? Perhaps we would just need to provide the source to the vendor, and
then they could further distribute it or not as they saw fit?

Thanks to any who care to answer.

[ Reply to This | # ]

PS - follow the threads... LUKE.
Authored by: Anonymous on Wednesday, December 17 2003 @ 12:10 AM EST
The above text and link has some of the most clearly laid out points and counter
points yet discussed. AND there are many other threads that are written by the
master to read. SO - go back - go to the link and follow the threads to where it
wants to lead you.

If you don't follow the theads - you won't find your way.
May the force be with you.

[ Reply to This | # ]

The GPL Seems To Leave Open the Possibility That It's a Contract
Authored by: osakans on Wednesday, December 17 2003 @ 12:24 AM EST
The FSF and others have been making the rounds in the past few months
hammering on the "license" versus "contract" distinction
--
interestingly enough, not something that was publicly discussed for the
first 10 years or so that version 2 of the GPL was in existence. I think
that's because the GPL is not so clearly a pure license (although I think
that's the better reading of the GPL). My sense is that the drafters
wanted to have a contract argument to fall back on if, for some reason,
the license argument failed.

Section 5 of the GPL is written in classic contract language -- "offer and

acceptance." For those who haven't taken classes in contract law, one of

the essential elements of a contract is that there must be an
"offer" of
particular terms and "acceptance" of those terms. Acceptance can
take
the form of direct statements (e.g., "I accept" or signing a
document) or
action in a prescribed form (e.g., being one of the first 10 people at a
store when the store has advertised that the first 10 people will get a
free toaster).

Section 5 of the GPL says that "by modifying or distributing the Program
(or any work based on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it." Section 5
appears to be setting up an argument that the distributor of the GPL-
licensed software "accepted" the terms of the agreement and received

value ("consideration") by being allowed to modify, reproduce and
distribute the software without liability and that the distributor is thus
contractually bound to comply with its terms. "Offer and
acceptance" aren't concepts that particularly apply to licenses.

If the GPL was a pure license, Section 5 would be wasted text. The GPL is
a fairly terse document, so I know the authors weren't
particularly interested in taking up unneeded space.

[ Reply to This | # ]

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
Authored by: Anonymous on Monday, December 22 2003 @ 08:32 AM EST

What do you make of this ?

http://cr.yp.to/softwarelaw.html

Firstly, in what he says

Secondly, if it affects, in any way the present discussion

[ Reply to This | # ]

Do you have a reference to Eben?
Authored by: jmhill on Wednesday, February 18 2004 @ 07:46 PM EST
Hello;

Thanks P.J. for this article, it helped me.

I am interested in Eben Moglen's remarks and would
like to read the original document. Unless I did
not see the reference, can someone post the URL
to that.

[ Reply to This | # ]

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