LWN: Comments on "The GPL Is a License, not a Contract"

The GPL Is a License, not a Contract

sailor — 2006-09-04T09:55:49+00:00

I often wonder what is and what is not considered as "distribution". Making a product publicly available (freely or commercially), providing it to others within the same company, giving it to a relative? Probably the reply is obvious to all those in the legal profession, but us IT people tend to get confused on this basic principle. Could someone provide some insight on this?

The GPL Is a License, not a Contract

pjgust — 2005-11-01T20:14:18+00:00

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.

The GPL Is a License, not a Contract

torgerk — 2005-01-26T17:02:04+00:00

If the GPL is merely a copyright license: a unilateral permission, in which no obligations are reciprocally required by the licensor, how is the licensor supposed to plead the NO WARRANTY clauses in GPL Section 11 at 12? The NO WARRANTY clauses are limitations on the licensor's liability towards the licensee, NOT limitations on the right to distribute the program as a copyrighted work. Hence, the NO WARRANTY clauses are contractual obligations (obligations to limit the licensee's right to hold the licensor liable) which requires acceptance from the licensee.

How could the GPL be considered merely a unilateral permission, which rules out the limitations of liability which the GPL emphasies in its preamble?

What About What Constitutes a "Derived Work?"

MeMyself — 2004-04-28T14:35:56+00:00

How does merely "looking at software" make similar work derived?
If I read a sci-fi novel, then surely I am not prevented from ever
writing one myself in the future? Yes, I am prevented from copying
chunks of text from existing sci-fi novels, even if I change the
names of all the characters (eg: variable names in software).

I am free to read a book and then write my own, as long as I do not
copy from any existing copyrighted work. Similarly, I am free to look
at someone else's code, and then write my own code that is similar,
yet not a copy of their work.

IANAL, so I am asking rather than stating...

There does appear to be some room for question

tailgunner — 2004-03-16T20:03:23+00:00

I am not a lawyer, however, this seems to be a simple misunderstanding.

1 I do not know if the licence is revokable, however, any revokation cannot be retrospective therefore as long as you continue to honour the terms of your licence you cannot be sued.

2. The GPL is NOT viral. That is to say, if you use GPL'd software to create an original work, you may distribute this any way you wish under any licence you choose even MS EULA.

3. Your software and the GPL. If you, for example, wrote an extension for a wordprocessor that was distributed under the GPL, you could not itegrate the software into and sell the whole as proprietory under the terms of the GPL. HOWEVER you could supply the wordprocessor under the GPL and sell your extension to the wordprocessor as proprietory under any licence you choose, provided you hold the copyright to all of the code within the extension.

Not So Simple

crythias — 2004-03-05T21:49:13+00:00

From Parent:
Furthermore, the GPL doesn't give you the right to sublicense the original work; everybody who gets a copy gets the right to re-distribute from the original licensor, not from you. (You are obliged to extend them rights to re-distribute your own contribution.)

I just wanted to make sure that this point isn't left unanswered:
From the GPL (http://www.gnu.org/licenses/gpl.txt):
1. You may copy and distribute verbatim copies of the Program's
source code as you receive it, in any medium, provided that you
conspicuously and appropriately publish on each copy an appropriate
copyright notice and disclaimer of warranty; keep intact all the
notices that refer to this License and to the absence of any warranty;
and give any other recipients of the Program a copy of this License
along with the Program.
3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the following: [Provide a reasonable way for recipient to obtain the source from you]
6. Each time you redistribute the Program (or any work based on the
Program), the recipient automatically receives a license from the
original licensor to copy, distribute or modify the Program subject to
these terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.
You are not responsible for enforcing compliance by third parties to
this License.
-=-=-=-=-
The GPL is a fully cascadable license. Each recipient of GPL code can be a distributor. The only true option of a copyright holder (not GPL licensee!) is to distribute a (hopefully, revised, updated, better) new program under a different (perhaps, proprietary) license. Even if the copyright holder revokes the GPL, the acceptors of the GPL version of the code (source or object), even 2-3 levels deep, because they accepted a viable license, have to have full faith and credit of the license they received.

Basically, GPL isn't intended to be revokable. If that may be one's intent, one shouldn't use GPL.

SCO's wacky legal theories

goaty — 2003-12-13T04:46:17+00:00

I love (3), there's a sort of crazed genius to it. Of course, if all GPL'd code was assigned to the public domain, that would amount to confiscation of "intellectual property" on a massive scale. I've no idea what the rules are for confiscation of property, but I'm pretty sure a court can't go confiscating property belonging to people who are not parties to the trial, so the US Government would have to do it. And if the US Government confiscated all GPL software, all us non-US copyright holders would be writing to our political representatives pretty sharpish :-)

But I don't think even that would get SCO out of jail. After all, they've already been distributing GPL software for quite some time. No, they need to claim that all GPL'd code is already de-facto public domain, by some sort of intellectual-property version of a "right of way". But then the same "right of way" theory would clearly make Unix public domain too (assuming that it isn't already). What's delightful about this is it basically trashes copyright law, but in completely the opposite way to their other wacky legal theory (the "we own all software ever" one). It would also achieve many of the aims of the FSF were this to become law.

It's funny how much SCO's argument resembles:
(1) the GPL is an invalid license
(2) therefore there is no legal license to use/distribute GPL software
(3) ...
(4) Profit!

There does appear to be some room for question

Baylink — 2003-12-12T15:30:57+00:00

Let's look at that again:

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.'

Italics mine. And that italicized clause could well be held to be incorrect -- and since it appears to be on point here, it's worth investigating more deeply.

The GPL is different from many common licenses because it permits the user to redistribute the licensed item with their own changes. This could be considered added-value to the license. It then imposes restrictions on that added-value, in enumerating the conditions under which you can exercise that right. Since those restrictions, in effect, require the licensee to render unto the licensor some of the extra value which they would otherwise be granted were the grant of rights *not* so limited, it seems to me that a case could in fact be made that "obligations are reciprocally required of the licensor". Whether such a case could be won, I don't know; I'm not a lawyer, I just play one on TV.

But I don't see that either PJ or Eben (or any of the 74 other posters, half of whom were Ciaran :-) has actually *addressed* this specific point.

The GPL Is a Contract about a License

mik — 2003-12-11T15:47:49+00:00

Huh? Moglen is merely expressing that such an assertion is nonsensical, not that some entity could not utter those words. At least superficially, it would seem to be equivalent to X&&!X, but presumes that there is no other means by which an entity could acquire blanket rights to copyrighted code licensed only under GPL.

Indeed, SCO seems to be preparing to assert the theory (1) that GPL is an invalid license, (2) therefore there is no legal license to use/distribute GLPed code, (3) in order to prevent immeasurable financial damage to the industry due to the loss of legal right-to-use, all GLPed code should be assigned to the public domain, thus (4) gaining SCO the rights to use whatever they want.

Doesn't seem too likely to succeed, but then IANAJ.

What About What Constitutes a "Derived Work?"

mimurphy — 2003-12-11T15:01:45+00:00

What about the problem of what constitutes a 'Derived Work?' If I look at a bunch of GPL code then work on a proprietary product, wouldn't there be an exposure to the claim that the proprietary product is now a 'derived work' of that GPL product?

So, if the proprietary product were to be released... it would have to be under the GPL to avoid damages, lawyer fees, and distribution-stopping injunctions.

Considering the ever increasing availability of GPL software, it would seem to get more and more difficult to claim that no GPL software has ever been looked at.

Mike

no, he's 99% right

ncm — 2003-12-08T05:55:34+00:00

Well, what about section 45 (quoted in another message below)?

Not So Simple

ncm — 2003-12-08T05:28:37+00:00

Also, see

http://www.idea.piercelaw.edu/articles/33/33_2/p225.Jones.pdf

Not So Simple

ncm — 2003-12-07T23:45:18+00:00

This seems to contradict the above:

§45. OPTION CONTRACT CREATED BY PART PERFORMANCE OR TENDER
(1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree begins the invited performance or tenders a beginning of it.
(2) The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer.
Comments: a. Offer limited to acceptance by performance only. This Section is limited to cases where the offer does not invite a promissory acceptance. Such an offer has often been referred to as an "offer for a unilateral contract" .

(Thanks to gumout.)

Not So Simple

ncm — 2003-12-07T23:37:52+00:00

This is getting silly.

Copyright law is about publishing. If you give somebody license to publish your book this year, you can decide to have somebody else publish it next year. Withdrawing your permission doesn't mean they have to recall and destroy all the books they published. It means they have to stop publishing. That's all it means.

The case of software distribution is the same. When your license to publish is withdrawn, you just have to stop publishing. If you have a derived work, you should make sure that they have promised not to withdraw permission. The FSF makes that promise.

The GPL Is a Contract about a License

danw6144 — 2003-12-06T01:06:26+00:00

IBM as counterclaim plaintiff filed against the SCOG as counterclaim defendant. SCOG has asserted the invalidity of the GPL as a defense in SCO v IBM.

The GPL Is a Contract about a License

piman — 2003-12-05T22:22:12+00:00

This statement is plain moonshine nonsense. Ever hear of SCO v. IBM (2003) ? The SCO Group is asserting just such a claim.

The SCO Group is not the defendant in SCO v. IBM, which is why their name comes first, they're the ones who filed the suit, etc, etc. The prosecution is free to claim that the GPL is invalid, or that a particular GPLd work is invalid (by virtue of it not being legal to GPL it in the first place). The defendant usually doesn't claim anything, except that the prosecution is wrong.

(What's with the word "moonshine" today? ...)

Damages

piman — 2003-12-05T22:18:12+00:00

Forfeiture of their rights to use the work they infringed upon. Not forfeiture of any of their own copyrights.

Not So Simple

freethinker — 2003-12-05T21:11:08+00:00

Section 0:

This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".

To me this says that as long as the notice is there, you're licensed. If you redistribute, as long as the recipients' copies have the notice, they're licensed. And so on, as long as anyone has a copy.

The GPL Is a Contract about a License

danw6144 — 2003-12-05T17:25:46+00:00

"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." --- Eben Moglen

This statement is plain moonshine nonsense. Ever hear of SCO v. IBM (2003) ? The SCO Group is asserting just such a claim.

When the Court examines this SCO claim , do you think the Judge will reach for a copy of the Federal Copright Act? The Copyright Act provides for original authors an exclusive right to license their work and prescribes damages for infringement. The Copyright Act is absolutely silent about the terms upon which an author may license his work.

The Court will look to see if the GPL is (or is not) a valid license and if SCO has (or does not have) valid permission. The Judge will look at the promise the GPL makes not to sue a distributor and whether SCO accepted the terms imposed for that promise when they distributed (the works). He will analyze this promise not to sue in light of unilateral contract law... not copyright law.

The way in which damages will be assessed for infringement is controlled by federal copyright law. Whether the plaintiff is entitled to damages will be assesed in light of a promise not to sue and acceptance of offeror's terms. The manner and terms upon which an author promises not to sue someone will be scrutinized under prevailing contract law and/or the Uniform Commercial Code Statutes.

no, he's 99% right

giraffedata — 2003-12-05T17:12:35+00:00

every paragraph above is wrong, probably every sentence.

I find every sentence and paragraph correct and valid (and consistent with the article) with one crucial exception: The implied assent to the contract. The comment suggests that simply availing oneself of a GPL license could count as agreement to a contract.

It's a fair theory, but not supported in case law. You have to do something more explicit to agree to a contract. There is such a thing as a unilateral, or public, contract, which means you publish an offer that says, "If you do X, then I promise to do Y." Most people who distribute GPL software don't make such an offer, but even if they did (where "Y" would be "grant you a GPL license"), the way unilateral contracts work is that the offeror cannot sue the offeree for noncompliance (because the offeree's compliance was what made the contract exist).

I'm a contract lawyer, by the way, but have only a passing acquaintance with intellectual property law.

The GPL Is a License, not a Contract

tcabot — 2003-12-05T16:05:34+00:00

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

Not So Simple

piman — 2003-12-05T14:51:08+00:00

Revoking a license is not the same as uninviting someone to dinner, and evicting them for trespassing if they do. It's much more like telling someone that they couldn't have come over for dinner last week, when you happily served them, and then immediately demanding your time, food, and occupied space back.

The GPL Is a Contract.

piman — 2003-12-05T14:14:06+00:00

> The GPL is a unilateral contract (in every respect) for a copyright license.

The GPL *is* a copyright license, not a contract for a copyright license. This is the difference. While much of the language in contracts and copyright licenses are to be interpreted the same way, and many precedents can apply to both of them, they are not identical. The largest difference is that there is a list of things that you can request for damages for a copyright license violation (this list is in USC 17 5), where the recompense for a contract can be much further-reaching (and is often defined in the contract itself).

An easy (but not always legally sound) way to consider the issue is that copyright is a "subcontract" between two parties, one of which (the copyright holder) has another contract with the government that limits what the subcontract can do, and provides a number of implicit terms.

Not So Simple

piman — 2003-12-05T14:08:01+00:00

Regardless of its purpose, USC 17 203 (especially 203b1, which still applies to 203a5) is there. It says that you can continue to abide by the terms of an otherwise-terminated license for a derivative work, and it lays out some pretty onerous terms for terminating the license in the first place.

But I've backed up my case -- where's your evidence that a copyright license can be revoked? How does it fit into USC 17 203?

The GPL Is a Contract.

danw6144 — 2003-12-05T13:09:42+00:00

Eben Moglen has been sharing David Heise's moonshine.
The GPL is a unilateral contract (in every respect) for
a copyright license. When examining the questions
raised by the GPL the Courts will first look to
The Restatement (Second) of Contracts and similar
contract law authority.

The good professor's attempts to claim that the GPL is
controlled purely by the Copyright Act because it is not
a bilateral contract (which it's not) is misguided.

Not So Simple

ncm — 2003-12-04T22:09:36+00:00

Ha.

We've been through this one before. That clause was meant to allow musicians to terminate a license after 35 years even when they signed a contract granting the license in perpetuity. Only in California did the record companies find judges willing to take it to mean that a license couldn't be revoked before 35 years had elapsed. The decision is widely acknowledged as a mistake.

(The key line is "(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.")

Not So Simple

piman — 2003-12-04T20:06:47+00:00

The conditions for terminating a license are given in USC 17 203. It must be done within a 5 year period between 35 and 40 years after the grant was mode. It must be agreed to by a majority of the copyright holders. You must send out a written notice in advance.

And even then, 203b1 says that any derivative work made before the termination made can be distributed and modified under the terms of the (terminated) license. Since the GPL's granted rights are transitive, this means anyone receiving it from you has the full rights of the GPL.

An implied contract is the only thing I know of that would allow you to defend continuing to re-distribute under the old license.

Or, perhaps, you know. Copyright law.

Not So Simple

dthurston — 2003-12-04T20:05:44+00:00

> When I give you a license, it it yours, not mine. I can stop giving out
> those licenses, but I cannot change, "withdraw", or take back what I have
> already given you.

This is not so obvious (at least world-wide), and needs legal references.
For instance, I've seen Wood V Leadbitter (1845) 13 M and W 838 (in the UK)
cited as implying that licenses can be revoked upon due notice to licensee
under British law. I think I've seen a more specific instance of a
software license case in Australia.

Re: Not So Simple - Revoking permission

Ross — 2003-12-04T19:22:02+00:00

The combination of sections 4 and 6 of the GPL seem to cover this. They
don't have any time limits and they make it clear that the grant of
rights is renewed everytime a work is distributed for the third party and
that the rights are granted only as defined in the license.

Under what conditions can someone normally back out of a contract?

This would seem especially difficult if the other party had acted on the
grant of permissions believing them to have been granted by the license
and believing they had met all obligations of the agreement.

Not So Simple

ncm — 2003-12-04T18:18:51+00:00

Where does anything say that a license can't be retracted? Thus far nobody has cited anything stronger than their own fervent wish.

The law certainly allows you to retract permission for the use of your property any time, subject to any contractual obligations you have entered into. If there's no contract, there are no obligations on the copyright holder.

I don't think a license is considered property.

ncm — 2003-12-04T18:13:04+00:00

The GPL does not claim to be irrevocable. It's not clear that it would be even if it did say so. (That's probably why it doesn't.) The owner is allowed to change his mind about anything, including the revocation. He can't do it retroactively, but that doesn't help us much.

Revocation wouldn't make existing copies illegal, but it would keep you from distributing more.

Not So Simple

ncm — 2003-12-04T18:03:11+00:00

In fact, you can retract a copyright license. You just have to communicate the retraction to the people who have the old license. It's no different from telling somebody who is used to coming over for dinner Wednesday nights that he's not welcome any more. If he insists, you can have the police eject him, and charge him with trespassing.

Furthermore, the GPL doesn't give you the right to sublicense the original work; everybody who gets a copy gets the right to re-distribute from the original licensor, not from you. (You are obliged to extend them rights to re-distribute your own contribution.)

The GPL only says what it says. You can read it and find out what it says, we don't need to speculate.

The GPL Is a License, not a Contract - Russian law

Ross — 2003-12-04T18:02:11+00:00

First off I'm not a lawyer and I don't know anything about Russian law.
Having said that...

Actually the GPL was designed to work in many countries. I assume
Russia signed the Berne convention. If so, it should be enforcable
because copyrights are recognized without registration and cover
distribution and creation of derivative works.

So even if item 1 is a problem which makes the GPL invalid, 2 is not
a problem (from an enforcability standpoint) because people would have
no rights to distribute or create derivative works. And if they don't
do those things there isn't a compliance problem in the first place.

Not So Simple

amikins — 2003-12-04T17:59:38+00:00

I don't believe that's correct; one of the points of the GPL is that it can't be retracted. So someone who has received something that was licensed under the GPL lawfully (that is, all the people doing the licensing had right to do so) can still distribute, no matter what someone farther up the chain may be yelling. It was licensed, the GPL doesn't have any mention of being revocable, and the standard GPL says at *YOUR* discretion a new license (specifically stated to be a newer version of the GPL) may apply.

'Your' in this case meaning the licensee, not licensor. So if you change your mind later, you're kinda out of luck.

Probably so

Ross — 2003-12-04T17:57:19+00:00

If there are multiple copyright holders enforcing the copyright can be
difficult. Collecting damages without registering the copyright can
also be difficult.

As an example I found a port of the x48 calculator emulator to MacOS X
including some nice changes to the timer. However they didn't abide by
the GPL. I reported the violation to the authors but their email
addresses do not appear to be current. I also reported it to the FSF
but they can't do anything about it. So the license will probably not
be enforced.

Re: Not So Simple

ncm — 2003-12-04T17:54:47+00:00

I'm talking about the original author backing out.

Oops

Ross — 2003-12-04T17:53:04+00:00

I didn't notice the other response to your post. They are correct,
items 2 is also overly broad because a port could also be shipped
with a written offer for the source code.

The GPL Is a License, not a Contract - XFoil

Ross — 2003-12-04T17:51:37+00:00

Items 1 and 3 don't appear to be correct interpretations of the GPL.
As such, wouldn't they be extra conditions and therefore incompatible
with the GPL?

Not So Simple

ncm — 2003-12-04T17:49:01+00:00

No. The GPL doesn't give you the right to extend their permission to anybody else. (That would be a power of attorney.) Everybody who gets a copy from you gets it under their license. If they withdraw the license, your permission to distribute more copies ends. The permission of other people who have copies also ends, although they can keep the copies they have.

Any copies you have distributed are still legal; the copyright holder can't retract that. But future publication is controlled by the latest license you know about. (It's probably their problem to make sure you know about the new license; they might have to send you certified mail before it's binding.)

Re: Not So Simple

Ross — 2003-12-04T17:42:56+00:00

I think the answer is no, but it doesn't really matter.

Even if a defendant claimed it was a contract there would be clear
evidence that they agreed to it if they are distributing or modifying the
work.

Not all contract require signatures. Buying a candy bar at the store is
a contractual agreement.

As for consideration, the licensee agrees to grant the same rights to
others, including the original author, for their own changes.

So even if someone wanted to argue it was a contract so they could back
out of it, how would they do so without showing that they agreed to the
contract? Or are you talking about the original author backing out?