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

Posted Jan 12, 2026 2:14 UTC (Mon) by SLi (subscriber, #53131)
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 understanding is that in most US states, you first look at if the text of the agreement is sufficiently ambiguous. If it doesn't facially allow v both sides' readings, the issue is basically over.

California, I believe, is one of the few states that allow evidence on the intent of the parties even when the text has an unambiguous reading.

This applies to your question in one way, and the full case in another way.

I believe that in most states the judge would ask where the GPL mentions third parties can sue, contrary to the default that they cannot. If you want an agreement enforceable by a third party, you almost always need to say so. In those states, it would be really hard to get a judge to read such a right into the agreement. In California, you can still argue that that was the intent of the parties (which is a funny concept when you apply a text written in 1991 to concepts like installing code on a television). I think this judge has still expressed skepticism, but she doesn't sound decided (and that's for the trial).

In California, I seem to remember it used to be much easier for a third party beneficiary to sue, but there was some recent-ish (90s?) case that restricted it to cases where the intent of the agreement was to benefit the third party (probably defined something like, one party needs to have intended the contract clearly to benefit a third party, and the other side must have understood this). This is to distinguish from cases where the third party benefits from the agreement *incidentally*, but the parties acted in self-interest.

I think this is one reason why the SFC designed this carefully to be a state case in California.

The other application is the construction of the GPL. I personally do not think SFC's construction of the text, requiring a practical ability to modify the software in the TV, is feasible. GPL was written in 1991. It doesn't even mention devices. It's clear it contemplates the software to be something like a binary, and at that time, installing from source would have meant running `make install`. I think it's much more plausible to read the text as requiring Makefiles than signing keys.

Here, too, I think SFC can attempt to have more read into the language with evidence from, say, FSF. Not that I would think it is easy when the FSF itself held for ages religiously the view that it's not an agreement (while here if it's not an agreement, SFC has no case; but, frankly, it's my impression that FSF's "it's not an agreement" was intended probably to avoid some pitfalls around disclaiming warranties, and I think no court ever accepted the argument that they are not agreements).

Now, I do tend to read the December 23 ruling as deciding that getting keys argument against SFC—and, contra SFC, I don't think the judge was misled or rejected something SFC didn't claim, but solidly rejected the argument that (L)GPLv2 can reasonably be read to require cryptographic keys necessary to run modified code on the device. SFC makes a lot of noise about "we never said it must not break something", but I really think the judge ruled that no, installation scripts just cannot be read to encompass things that would allow you to run *any code* on that specific device.

This is not to say that the case has been disaster for SFC. In fact, I think it's been a success. It's already very significant that the judge has decided there was a binding and accepted offer to provide the sources to SFC.

I think the trial is going to be mostly about what triggers that—do you need to go through the rituals of requesting the source, have them ignore and stall for years and then you probably won't sue because that's expensive—or whether anyone who receives the software, and regardless of whether Vizio made the offer (it might be breach of license to not provide, but it doesn't follow anyone can sue to enforce it) has enforceable rights, which likely would make something like class actions on their behalf much more possible.

And that will turn in intent. FSF has said some conflicting things over years, and I believe deciphering that will be one part. And I'm not sure if it's been decided yet how that is to be applied to this case, where it's about the intent of the *parties*. The SFC will obviously argue that there's no other consideration; the code *is* the consideration, and it's obviously for the benefit of everyone. But I don't think it's hard to find FSF quotes saying "only the copyright owners can sue" from the relevant times, and that's quite relevant for the intent of the parties when conducting the transaction.

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

Posted Jan 12, 2026 13:20 UTC (Mon) by pizza (subscriber, #46) [Link] (4 responses)

> [...] GPL was written in 1991. It doesn't even mention devices [...]

Most legal texts have been extended to cover stuff far beyond what existed when they were first written. Classic example being the US Constitution's bill of rights.

> But I don't think it's hard to find FSF quotes saying "only the copyright owners can sue" from the relevant times, and that's quite relevant for the intent of the parties when conducting the transaction.

Except the FSF isn't a party to this agreement either. :) If you're going to get into their _intent_ then it's going to be more broadly encompassing than what the _actual_ GPLv2 text allows. Hence the v3 "bugfixes".

Meanwhile, as you mentioned earlier, case law (if not actual statue) develops over subsequent years, and can easily result in outcomes that differ from the intent of any of the [un] involved parties.

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

Posted Jan 12, 2026 14:43 UTC (Mon) by SLi (subscriber, #53131) [Link] (3 responses)

[I realized after writing my original message here that most of the stuff I wrote about had been further elaborated by excellent LWN articles since then. I should strive to lag less in my news reading. :-)]

> Most legal texts have been extended to cover stuff far beyond what existed when they were first written. Classic example being the US Constitution's bill of rights.

I don't know if "most" is fair, but sure, this happens. Still, a court probably is going to have some doubts reading a legal text in a way that would have been incomprehensible when it was written (except for the Constitution, but I think that is a an example of a nation deciding that something written by humans is holy scripture and then scrambling to fix the damage by creative reading).

> > But I don't think it's hard to find FSF quotes saying "only the copyright owners can sue" from the relevant times, and that's quite relevant for the intent of the parties when conducting the transaction.

> Except the FSF isn't a party to this agreement either. :) If you're going to get into their _intent_ then it's going to be more broadly encompassing than what the _actual_ GPLv2 text allows. Hence the v3 "bugfixes".

Right, but, that makes it far from irrelevant. It cannot be denied that FSF has been a significant force in *how the document was understood* even in the subsequent years. And that *is* relevant when we look at what the kernel devs would have understood it to mean and what Vizio would have understood it to mean.

From a court's point of view, if the drafter of the license, which was one the most pro-free-software entities in existence and certainly a major influence in how it was understood, said in public that only the copyright owner can sue to redress GPL noncompliance, it genuinely does make it less plausible to argue that those who adopted the license likely understood it to give wider enforcement rights.

Now, in the Vizio case, the trial is happening at least in part precisely *because* of a question over FSF's intent. Here's some text from a tentative ruling from December 4:

---

>> Plaintiff alleges the plain language of the GPLs provides that Plaintiff and other purchase of Defendant’s smart TVs are intended third-party beneficiaries of the GPLs. [...] In [26 March 2024 minute] order, the Court found Defendant had presented evidence that FSF “did not intend for third parties [including Plaintiff] to enforce the rights under the license agreement,” creating a triable issue as to the parties’ intent.

[... the court goes to reject Plaintiff's request for summary adjudication for procedural reasons, but offers this alternative grounds:]

>> Plaintiff has not demonstrated that the new evidence disposes of the factual disputes which caused the Court to deny its prior motion. Even if the Court considers the new evidence, including declarations of Ms. Kooyman and Mr. Kuhn, the new evidence does not negate the triable issues created by conflicting prior statements by the FSF which the Court previously found were sufficient to demonstrate a triable issue.

---

> Meanwhile, as you mentioned earlier, case law (if not actual statue) develops over subsequent years, and can easily result in outcomes that differ from the intent of any of the [un] involved parties.

Yes, but here we have to separate two different things: The agreement's intent and the law that constrains things like what you can actually enforce. The courts will look for the intent. The mechanisms they allow themselves differ a bit by jurisdiction, but no court will read a contract from 1950 saying "The Vendor shall retain exclusive rights to all kernels produced by the operation", to apply to OS kernels in 2026. Courts that rely on plain meaning rely on plain meaning at the time of the writing.

So I believe courts would separate the question into two parts:

1. What was the intent of the parties? Depending on jurisdiction, you only look at the text and only if it's ambiguous consider other evidence; or, I think in California, you allow external evidence even for the proposition that "ok, this is what it facially means, but I can show that it's not how the parties meant it". But the courts will try to get as close as they can to how it would have been read at the time.
2. Now, treat that agreement as an abstract blob of intent, separated from the text. Apply the law to an agreement with that intent. Applying 2026 law may give a different result from applying 1950 law.

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

Posted Jan 12, 2026 15:27 UTC (Mon) by pizza (subscriber, #46) [Link] (2 responses)

> said in public that only the copyright owner can sue to redress GPL noncompliance

This seems to be a question of *law*, not the FSF's opinion of what they think the law should be. But regardless of their opinions, the legal landscape has changed considerably since the GPLv2 was written -- most prominent change being legally-enforced DRM that renders quite a bit of the GPL's "intent" effectively worthless.

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

Posted Jan 12, 2026 15:36 UTC (Mon) by Wol (subscriber, #4433) [Link]

> most prominent change being legally-enforced DRM that renders quite a bit of the GPL's "intent" effectively worthless.

Or does it render much DRM unlawful as applied to GPL-licenced code?

Cheers,
Wol

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

Posted Jan 12, 2026 18:39 UTC (Mon) by SLi (subscriber, #53131) [Link]

> > said in public that only the copyright owner can sue to redress GPL noncompliance
> This seems to be a question of *law*, not the FSF's opinion of what they think the law should be. But regardless of their opinions, the legal landscape has changed considerably since the GPLv2 was written -- most prominent change being legally-enforced DRM that renders quite a bit of the GPL's "intent" effectively worthless.

It's not, really. A contract *can* usually deliberately create a right for a third party beneficiary to sue. Thus, the question here is whether GPL does, which goes to the intent of the parties. Intent of the parties can be a question of the law if the text is clear enough, but California allows evidence even against what seems like a clear meaning of a text.

I think you need to look at the intent in a more limited sense. It's not about "what we want to ultimately accomplish". The intent as relevant here, is much more mechanical: Did the parties intend to agree to grant third party beneficiaries the right to sue for specific performance. The "what we want to accomplish" part is relevant to answering that question, but the court ultimately wants to answer how the parties at the time would have answered that very specific question.

Now, there is, or rather was, an argument to be made that, in this specific case, this is something that could not be agreed at all. Vizio tried it and lost.

The SFC carefully styled the claim as a state contract law claim, not a Copyright Law claim. Copyright is exclusively federal; states cannot really add to it or remove from it. Vizio removed the case to a Federal Court, arguing that the claims are fully preempted by the Copyright Act. Essentially, "what is demanded here is sufficiently copyright-like that the states are preempted from doing that".

And that was a good try. The federal judge looked at the case and said that this demand for producing source code is different enough from the normal exclusive rights of the copyright owner that it can properly be analyzed under contract law. Remanded to state court.

Had Vizio won that claim—and I think it plausibly could have—the case would have been over. It would have been moved to the federal court. Then the judge would ask SFC "are you the copyright owner?". "No" -> Ok, you have no standing to sue; only the copyright owner has standing to sue under the Copyright Act.