Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 8, 2026 16:33 UTC (Thu) by daroc (editor, #160859)
In reply to: Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL? by paulj
Parent article: SFC v. VIZIO: who can enforce the GPL?

My current understanding (with the caveat that although I've researched this and read through the legal filings, I'm not a lawyer) is that:

If a company does indeed make a source offer, and someone accepts, that probably suffices to create an enforceable contract under California law and probably under other US jurisdictions too. This contract doesn't directly depend on the GPL — it's formed in the normal way of any contract, by having someone make an offer and someone accept a deal wherein each party receives a consideration.

Anything beyond that, such as whether just redistributing modified GPL-licensed software is enough to implicitly create a source offer, or whether buying a product changes things, or how this extends to other less explicit cases is not decided yet. Some of that might be decided during the trial, and some of it might have to be settled by other lawsuits.

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Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 8, 2026 20:41 UTC (Thu) by Wol (subscriber, #4433) [Link] (10 responses)

> This contract doesn't directly depend on the GPL — it's formed in the normal way of any contract, by having someone make an offer and someone accept a deal wherein each party receives a consideration.

Bear in mind, I believe there has been a US court case which has explicitly stated that consideration is not necessarily money/goods, a promise can be consideration. So an acceptance of the GPL / promise to abide by its terms could be the necessary consideration to create a contract. Which would clearly make the SFC a 3rd-party beneficiary of a contract.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 8, 2026 21:21 UTC (Thu) by daroc (editor, #160859) [Link]

Sure! I do think it's very possible that the judge will say that such a contract exists. But we don't know that will happen for _certain_ because she has not yet ruled on that question.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 25, 2026 21:00 UTC (Sun) by jjs (guest, #10315) [Link]

From my one course on Business Law over 30 years ago (so my memory may not be right), "Consideration" and acceptance of an offer doesn't have to be goods. Example given, as I recall: "If you get an A on your XYZ test, I'll buy you ice cream." That's the offer. Acceptance can be demonstrated by getting an "A" on XYZ test. Consideration is, on one side, the fact that the other person got the A (on the other side, they get ice cream). From my perspective, the receiver abiding by the GPL could be considered acceptance, which binds the giver to the terms of the GPL for providing source code.

IANAL, though, having only had that one course. For legal advice, consult an attorney.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 26, 2026 12:28 UTC (Mon) by kleptog (subscriber, #1183) [Link] (7 responses)

From the point of EU/Dutch law, a copyright license is not a contract, not even an implicit one, because there is no offer, negotiation or acceptance. So the issue of consideration doesn't even enter into the picture. A copyright license can only limit things limited by copyright law, nothing else. And if you violate the terms it's a copyright violation, not a contract breach.

This was incidentally one of the issues with the GPLv2 which talks about "accepting the license" which is meaningless in an EU/Dutch legal sense.

Open‑source licenses are the closest thing to a "pure" software copyright license in EU/Dutch law: they grant permission for copyright‑restricted acts and impose conditions only on those acts, no contract acceptance required. In contrast, most commercial software ships under a contract (e.g. EULA) because they add extra terms (usage limits, audits, warranties, SLAs, payment, etc.) not related to copyright which require contractual consent and are enforceable as contracts.

And apparently in the EU/Dutch model you can sue as a recipient because you were "harmed" by someone else's copyright violation. But the only remedy you can get is compliance, only the author has additional possibilities.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 26, 2026 15:39 UTC (Mon) by Wol (subscriber, #4433) [Link] (3 responses)

> In contrast, most commercial software ships under a contract (e.g. EULA) because they add extra terms (usage limits, audits, warranties, SLAs, payment, etc.) not related to copyright which require contractual consent and are enforceable as contracts.

Most commercial software ships as part of a commercial transaction, eg the customer buys it, but "adding extra terms" post-hoc is probably illegal certainly under EU consumer protection law. I'm not aware of any court cases over this, though. Under UK law I would have thought a customer saying "I've paid for this but can't agree to the extra terms" would instantly trigger "not fit for purpose" and a mandatory refund. Tough on the customer if they actually wanted the software, though.

> From the point of EU/Dutch law, a copyright license is not a contract, not even an implicit one, because there is no offer, negotiation or acceptance.

What do you mean - "no offer"? The licence IS the offer, just like the price tag on the shelf of a supermarket. In UK terms, an "offer to treat".
"No negotiation"? The price tag is "take it or leave it", just like the licence.
And acceptance? "Fine, I accept those terms and I'll pay the price". Supermarket or licence.

A licence isn't a contract, yes, but the licence is the terms - the agreement - behind a contract. If you accept the terms of the licence, you are bringing a contract into being.

Hmmm - this is the nub of the problem - you can admit to copyright violation (which in these circumstances would actually be a criminal offence in the UK), or you can admit to breach of contract. Which is better? Admit to a civil offence, or a criminal one? Unfortunately, given the choice, it's probably better for a company to admit the criminal one :-(

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 26, 2026 17:30 UTC (Mon) by kleptog (subscriber, #1183) [Link] (2 responses)

>What do you mean - "no offer"? The licence IS the offer, just like the price tag on the shelf of a supermarket. In UK terms, an "offer to treat".
> "No negotiation"? The price tag is "take it or leave it", just like the licence.
> And acceptance? "Fine, I accept those terms and I'll pay the price". Supermarket or licence.

Please do not assume the rest of the world works like it does in the UK/US. Yes, if you pay for software there is a contract which grants you a licence, but the contract is not the licence. If you are not paying, e.g. GPL software, then there is no contract, just the licence that grants unilateral terms. If you violate the terms of an EULA it can be both contract violation and copyright infringement, because you can violate both the contract and the licence separately.

In Common Law systems, the distinction between a contract and a license is fuzzy, which makes discussion harder due to overlapping legal terminology. Here they are two strictly separated categories. You cannot "accept" a GPL licence in Dutch law, it just doesn't mean anything. Which is why the GPLv3 got rid of that language. The author granted you rights, you have them, you don't have to "accept" them first.

AIUI Common Law systems never developed a robust framework of "unilateral granting of permissions", but try to convert everything into some form of "contract", which falls apart once you start dealing with intangibles like software.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 26, 2026 17:37 UTC (Mon) by paulj (subscriber, #341) [Link]

> Please do not assume the rest of the world works like it does in the UK/US.

Worth also bearing in mind the rest of the EU doesn't per se work like NL. There is at least 1 (or 2?) EU member state that derives from English common law* - Ireland (and Malta?).

Though, it may be the GPL does not lead to a contract in common law jurisdictions either. Not clear to me - nor are the implications clear. There was an article on LWN in '03 from Pamela Jones: https://lwn.net/Articles/61292/

* Note, English common law - not "UK common law". Scotland has a distinct system.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 26, 2026 18:24 UTC (Mon) by Wol (subscriber, #4433) [Link]

> In Common Law systems, the distinction between a contract and a license is fuzzy, which makes discussion harder due to overlapping legal terminology. Here they are two strictly separated categories.

Given that a contract (under our legal system, at least) is assumed to be a meeting of minds, I would agree that a licence is not a contract.

But a licence is *the terms of the contract*.

Just like, if you have a copy of the GPL3, that copy is not a licence. But when you copy (or other restricted actions) some GPL software, that *copy* of the GPL is the terms and conditions that let you copy it.

So the question is - "does a contract exist, the agreed terms being the GPL"? And if you're going to say the licence and the contract are two separate things, I'd agree with you. I'd just argue that you cannot take advantage of the GPL without bringing a contract into existence. Which was my point about does the offender admit to (criminal) copyright violations, or breach of contract.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 27, 2026 5:20 UTC (Tue) by donald.buczek (subscriber, #112892) [Link] (2 responses)

> From the point of EU/Dutch law, a copyright license is not a contract, not even an implicit one, because there is no offer, negotiation or acceptance.

I am fairly certain that this is not generally correct and that a license is always a contract, at least in German law.

With FOSS, the accompanying license file is usually a public offer and the contract is accepted “impliedly,” i.e., through conclusive action.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 27, 2026 9:29 UTC (Tue) by farnz (subscriber, #17727) [Link] (1 responses)

In English law, there's a nuance that only lawyers really need to care about: most licences are technically offers to contract, and you're not bound by them if you can show that you did not accept the terms (but that requires you showing that your behaviour was lawful in the absence of an accepted contract).

The details of what that means is a fun bit of minutiae for a lawyer (and was a fun chat to have with one), but for all useful purposes, you might as well treat a FOSS licence as a contract - the interesting edge cases all crop up where the licence restricts something that is lawful in the absence of the licence as a whole (e.g. if it purports to place restrictions on reverse engineering).

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 27, 2026 10:11 UTC (Tue) by Wol (subscriber, #4433) [Link]

> the interesting edge cases all crop up where the licence restricts something that is lawful in the absence of the licence as a whole (e.g. if it purports to place restrictions on reverse engineering).

Especially in a EULA, if the customer has already paid for the software before they agree to the licence! As I have a habit of saying, that's fraud. With a small "f", not necessarily in law, but a pretty clear case of "obtaining money/whatever by deception".

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 8, 2026 23:59 UTC (Thu) by milesrout (subscriber, #126894) [Link] (11 responses)

What consideration does the offeror receive in this scenario? As I understand it you're talking about this situation:

1. A offers to the world to provide the source code for product X.
2. B "accepts" the offer by doing what? Buying product X manufactured by A but not directly from A?

The problem is: what consideration has A received from X?

The classic case in English law on unilateral contracts, and I suspect but have not checked that the same general principles apply in the US, is Carlill v Carbolic Smoke Ball Company where the Smoke Ball company offered its product for sale and advertised that it could cure certain ailments. It also offered to pay a reward to anyone whose ailments weren't cured. Carlill bought the product and sued for the reward, not having been cured.

But the difference here is that B has just downloaded X. B hasn't actually bought anything from A, hasn't given any consideration. There's no contract. Now it might be different if B had bought a TV directly from the manufacturer but if B has bought the TV from their local retailer then I don't see how there is good consideration from B to A for there to be a contract.

(This post is not legal advice etc.)

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 8:28 UTC (Fri) by Wol (subscriber, #4433) [Link] (2 responses)

You could well be right but this doesn't sit well with me. This smells (like Carbolic :-) of early consumer protection.

Smoke Ball took the customer's money and provided a guarantee, which had nothing to do with the customer and everything to do with the product. So this case has a strong whiff of "fraud" to me - either it didn't work and Smoke Ball took money under false pretences, or it did work and the customer was trying it on.

The GPL and software licences feel very different to me. "If you do X, we will let you do Y". (And this is where lawyers earn their money because consciously intending not to do X also stinks of fraud ...).

So I think the question in the Carbolic case is did Smoke Ball make an offer they had no intention of honouring, or did they make an offer they didn't expect to be taken up.

In the Vizio case, the question is did Vizio (or someone in their supply chain) make an offer they had no intention of honouring.

And to whoever mentioned buying a house for them and their child, I don't think courts are extending contracts to "third party beneficiaries", I suspect they're just taking the attitude "a contract is a contract is a contract". Again, consumer protection comes in, because you have the gifter/giftee scenario. If I buy something and gift it to my children, they have no rights because it was a gift. If it wasn't a gift and they'd given me something they would have had rights against me. In the house example the contract said the vendor agreed to hand over the house, so the contractual recipient should be able to enforce it.

I think the question boils down to "is there a clear contractual path to someone who has reneged on their agreement?", and imho as soon as you step beyond unconditional gifts / licenses, that brings an agreement - a contract - into play. Is the licence the whole agreement, or is the licence merely the terms of a contract? Imho if the licence places conditions on the recipient, then it has to be the terms of a mutual contract. It just doesn't make legal sense to me otherwise.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 11:15 UTC (Fri) by milesrout (subscriber, #126894) [Link] (1 responses)

The case had nothing to do with consumer protection or fraud. It related to whether there was a contract. It may have entered the judicial mind that the plaintiff was a poor elderly old woman and the defendant was a company but that wasn't the reason for the decision. The reason I brought it up was to contrast it to this case where there it is not clear to me how you could argue that there's an independent contract between me and you just because you publicly make a source code offer and I "accept" it. In order for there to be a contract, there needs to be an exchange of consideration. I'm asking: what does the person to whom I was replying think the consideration is here?

I don't know why you're speculating about the reasons for the Carlill decision because they're not relevant to the point and there's no need to speculate: anyone can go and read it. It isn't about whether the company intended to honour their promise but whether the promise was legally binding as an offer to the world (or whether, as they unsuccessfully argued, offers have to made to specific persons). Subjective intention is not relevant to the law of contract.

>And to whoever mentioned buying a house for them and their child, I don't think courts are extending contracts to "third party beneficiaries", I suspect they're just taking the attitude "a contract is a contract is a contract".

When I briefly explained the principle of privity of contract, its strict implications for intended third party beneficiaries, and that it has commonly been statutorily reformed across multiple jurisdictions, I actually wasn't starting a debate or asking you to come up with ideas about what reasons you might have or have had for coming to similar decisions. I know that sounds rude, but I don't mean it that way. I just don't actually see any value in speculations about things that aren't speculative. This isn't a topic that's up for debate, it's what the legal history is.

There is no legal principle that "a contract is a contract is a contract". There is, however, a principle that only the parties to a contract can enforce it and intended third party beneficiaries are not parties to contracts and so cannot enforce it. And a long history of that principle being applied. And a recognition in society that that created unjust outcomes. And a resulting effort to reform the law to enable claims by intended third party beneficiaries of contracts.

This has nothing to do with consumer protection in the scenario I outlined. The example was not a consumer issue. And it has nothing to do with gifts. My example was an agreement where A pays B in exchange for B transferring property to A and to C. C is not a party to that contract: C has given no consideration, didn't offer anything, didn't accept anything, and does not need to have any knowledge of the contract or manifest any intention to enter into legal relations.

Of course in that scenario the vendor should not be allowed to get away with not transferring the property to C just because A doesn't want to enforce the contract, and C should have a legal right and a claim. That's why this rule has been changed in so many places. But I'm saying I'm not sure how it has changed specifically in California, so it might not be as simple as it is in some places for a third party beneficiary to make a claim.

>I think the question boils down to "is there a clear contractual path to someone who has reneged on their agreement?", and imho as soon as you step beyond unconditional gifts / licenses, that brings an agreement - a contract - into play. Is the licence the whole agreement, or is the licence merely the terms of a contract? Imho if the licence places conditions on the recipient, then it has to be the terms of a mutual contract. It just doesn't make legal sense to me otherwise.

Sometimes the law doesn't make sense to laymen. That's unfortunate but it's fine because it has to operate according to rules and those rules sometimes have consequences that are unintuitive. The question here is whether there is a contract between Vizio and the SFC or whether SFC could make a claim as a third party beneficiary of the contract. They're too quite separate questions. For the former to be the case, there needs to be consideration (which I don't see and nobody has given a satisfactory suggestion for what that consideration might be). The latter claim seems much more likely to me, both from the basic facts as outlined in the article and from the express reference to a claim as a third party in the article.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 13:21 UTC (Fri) by pizza (subscriber, #46) [Link]

> The question here is whether there is a contract between Vizio and the SFC [... ] there needs to be consideration [...]

Given that the SFC purchased a Vizio TV, there's clearly _some_ sort of consideration changing hands here.

(Ok, ok, sure, the SFC didn't purchase it directly from Vizio, so there are probably a couple of middlemen involved. But in numerous contexts, the law allows [if not requires!] these layers of indirection to be short-circuited directly back to the manufacturer. Meanwhile, if you turned the TV on and there's a click-through "contract" with Vizio's name on it, then there's clearly a direct relationship too...)

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 10:50 UTC (Fri) by tialaramex (subscriber, #21167) [Link]

Your example is confusing because it imagines a product X and then asks where X provided consideration. Products don't accept contracts and so needn't provide consideration, people do that, and so I suggest that you mean to ask what consideration A has received from B ?

English Law has a *long* history of finding some consideration where a lay person can't immediately see anything, so I don't expect that to be an obstacle here. Go read about Peppercorn rents for an example of this. Today it's even not legal to demand payment of the peppercorn because the whole point is that it's a legal fiction, you don't get an actual peppercorn. Lawyers were apparently not uncomfortable with the idea of "consideration" which doesn't exist and will never in reality be received by the other party.

So in this scenario my guess is that if obliged to find one lawyers will say something like B might improve this source code, and A can benefit from that, so that's a consideration. Did they improve it? Nobody cares, in principle they could. Did A benefit? Nobody cares, in principle they could.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 12:27 UTC (Fri) by nivedita76 (subscriber, #121790) [Link] (5 responses)

You shouldn’t need a direct purchase, otherwise how would manufacturer warranties work?

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 13:07 UTC (Fri) by farnz (subscriber, #17727) [Link]

Manufacturer warranties are not always enforceable, depending on jurisdiction. And when they are enforceable, they're not always contract terms.

In places where they're not enforceable, they are legally good-will gestures from the manufacturer to the consumer; the manufacturer chooses to do something because they believe that the cost of fixing faults is outweighed by the reputational benefit of having consumers believe that the manufacturer will fix any faults they find.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 16:06 UTC (Fri) by Wol (subscriber, #4433) [Link] (3 responses)

Many warranties only apply to the original purchaser, and require proof-of-purchase.

Many warranties are also now worthless, as being a subset of consumer protection rights (other than consumer convenience of being to able to say "this is a warranty issue", as I've had cause to do occasionally).

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 10, 2026 10:06 UTC (Sat) by nivedita76 (subscriber, #121790) [Link] (2 responses)

Well, yes, but as the “original purchaser” of, say, a Sony TV, your proof of purchase shows a payment to Best Buy or amazon or some other retailer, not Sony.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 10, 2026 12:56 UTC (Sat) by Wol (subscriber, #4433) [Link] (1 responses)

Yes.

But the legal obligations placed on Best Buy or Amazon usually trump the self-imposed guarantee from Sony. I can get my TV fixed by either. Shops will normally (I have an instance where they didn't) replace a faulty new TV on the spot. I'll never buy that brand of TV again, because apparently it was their terms with the shop that made the shop refuse to just swap :-(

If the shop doesn't replace it on the spot (after a few months, that's unlikely) they can send it back to the manufacturer, or I can, and it's a toss-up whether I take it back to the shop or send it back to the manufacturer, but it's my choice. From my PoV, I'd usually prefer the shop to take the hassle.

And on the one occasion I did have real trouble, I simply said to the shop assistant (John Lewis, of all places !!!) "You're in effect charging me for a warranty repair - you need to go and speak to a manager!" (My phone had broken, and the only offer he would make was refund the sale price and expect me to buy a new one full price. The law says repair/refund/replace whatever is acceptable to ME. And having to pay for a replacement was NOT acceptable. :-)

And if I give the TV as a present the manufacturer guarantee is worthless to the recipient. The shop guarantee MAY transfer to the giftee.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 11, 2026 2:04 UTC (Sun) by milesrout (subscriber, #126894) [Link]

This is a separate issue. The reason we have consumer law is that the common law didn't cover these scenarios. So if you bought something from a retailer, you only had rights in contract with the retailer, and generally most of the rights you might expect to have could be contracted out of. If you wanted to make a claim against the manufacturer it would need to be something like a claim in negligence, which was much harder to establish.

In New Zealand, consumer warranties can always be pursued against both retailer and manufacturer, except for a few specific warranties which are only available against the retailer. And it covers gifts as well. They're not contractual rights but statutory rights and it's covered specifically in the Act. But this is just a matter of statute - it has really nothing to do with contract law.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 14:14 UTC (Fri) by daroc (editor, #160859) [Link]

I'm not fully certain what the consideration in question is, actually. The judge's tentative ruling doesn't spell that out, but it does say:

Therefore, Plaintiff adequately stated a basis for its contract argument in its FAC and discovery responses.

... so I'm not sure, but the judge seems to think that a contract could exist here, presumably for reasons that are obvious to a member of California bar but that are not obvious to me.