The GPL Is a License, not a Contract [LWN.net]

The GPL Is a License, not a Contract

Posted Dec 4, 2003 2:36 UTC (Thu) by torsten (guest, #4137)
Parent article: The GPL Is a License, not a Contract

"You do have a choice under the GPL: 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," the court can impose an injunction to stop you from further distribution, but it won't order your code released under the GPL. Your code remains yours, as you can see, even in a worst case scenario."

PJ has clarified why a company will never be forced to release their code under the GPL, but she has not stated what would stop a company from incorporating GPL code to begin with.

I believe the most significant barrier to the theft of GPL code may be substantial per-infringement awards specified in copyright law. But the question is, do I need to demonstrate financial damage, or is simple infringement enough to collect? And if I need to demonstrate financial damage, would a judge buy that I have suffered financially when I don't even charge money for my software?

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The GPL Is a License, not a Contract

Posted Dec 4, 2003 3:17 UTC (Thu) by coriordan (guest, #7544) [Link]

huh?
Nothing can "stop a company from incorporating GPL code to begin with". Just as nothing can stop a company from incorporating this comment into their work. Prevention is just impossible. But it's illegal, and breaking the law has consequences, and society hopes that these consequences are scary enough to discourage people from breaking the law "to begin with".

> do I need to demonstrate financial damage, or is
> simple infringement enough to collect?

Infringement is enough to collect. Eben Moglen explained all this.

P.S great article.

The GPL Is a License, not a Contract

Posted Dec 4, 2003 6:41 UTC (Thu) by dlang (subscriber, #313) [Link]

in fact it's perfectly legal to incorporate GPL code into propriatary software, as long as you don't then distribute the result.

The GPL Is a License, not a Contract

Posted Dec 5, 2003 16:05 UTC (Fri) by tcabot (subscriber, #6656) [Link]

My alma mater's motto seems appropriate here: "Leges sine moribus vanae", or "Laws without morals are in vain".

financial damage

Posted Dec 4, 2003 3:34 UTC (Thu) by pjm (subscriber, #2080) [Link]

Even if you don't charge for redistribution etc. under GNU GPL terms, you are still entitled to charge for redistribution beyond what is permitted by the GNU GPL.

(If grant permission to do any copyright-limited actions with your work without charge, then there's no infringement, as one already has permission.)

The GPL Is a License, not a Contract

Posted Dec 4, 2003 7:08 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

But the question is, do I need to demonstrate financial damage, or is simple infringement enough to collect?

There are two kinds of damages that a court may order in a copyright case:

statutory damages - the damages provided by copyright law
actual damages - how much damage you can demonstrate to the court was caused by the defendant

For information on remedies for infringement, see 17 U.S.C. 504.

The plaintiff may choose whether to request actual damages or statutory damages. The amount of statutory damages awarded are left to the discretion of the court, and range from $750 to $30,000 per infringement (i.e., per copy distributed in violation of the license), or up to $150,000 if the court finds that the infringement was willful.

In the past, in order to be eligible to be awarded statutory damages for copyright infringement of a work, it was necessary for the copyright on the work to have been registered either prior to the infringement, or within the three month grace period following first publication. It appears that this requirement may have been lifted.

In addition, the court may allow recovery of attorney's fees.

Note that if even if you choose not to register a copyright, you are still required by 17 U.S.C. 407 to deposit two copies of the work with the Library of Congress. If you fail to do this, the Register of Copyrights can issue a written demand for the deposit, and can impose fines if the demand is not met within three months.

The GPL Is a License, not a Contract

Posted Nov 1, 2005 20:14 UTC (Tue) by pjgust (guest, #33537) [Link]

A couple of related question about copyright and GPL. Both are related to whether the ability for an author to offer software under GPL depends on having a valid/active copyright.

Question 1: What happens to the ability of the owner to continue licensing code under GPL once the copyright for the software expires? Can the author continue to require new licensees to adhere to the terms of the GPL anyway? What about existing licensees; are they now free of its provisions or must they continue to operate under the license?

Question 2: 17 USC 411 says that, "no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title". 17 USC 412 goes on to say that, "no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for ... any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."

I'm willing to bet that most if not all source code licensed inder GPL has not been registered and no fees have been paid. How does this impact the validity and/or enforcability of the GPL for such code? Does the GPL depend on its enforcibility under copyright law? Or is it the case that the licensor can still seek injunctive relief for a violation of the license, independent of the enforcibility of the underlying copyright. If not, it's bad news for most if not all GPL licensors. If so it seems that GPL must be based on something beyond copyright law.