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

[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:

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>> 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.

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> 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.