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)
In reply to: Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL? by Wol
Parent article: SFC v. VIZIO: who can enforce the GPL?

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.

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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