tag:blogger.com,1999:blog-19798349.post114298062371559047..comments2024-03-22T12:20:48.920+00:00Comments on open...: Why the GPL Doesn't Need a Test CaseGlyn Moodyhttp://www.blogger.com/profile/04436885795882611585noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-19798349.post-1143212839103494612006-03-24T15:07:00.000+00:002006-03-24T15:07:00.000+00:00Hmmm... ...that's an interesting point, but I thin...Hmmm... ...that's an interesting point, but I think it's a distinction without a difference. If there's an agreement between 2 parties (and even a license provides this) I would say, technically, it's a contract - of some type.<BR/><BR/>That is, all licenses, are, in essence, contracts; but not all contracts are licenses.<BR/><BR/>One could certainly argue the point.<BR/><BR/>As for the quid pro quo to the licenser, that's easy... ...while it may not be money (or some other tangible item) being given in exchange for use of the code, in this case it's the derivative being made available back to the author. One could certainly argue that this 'intangible' has intrinsic value.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143212350926851212006-03-24T14:59:00.000+00:002006-03-24T14:59:00.000+00:00Craig throws out an argument:But I can see a possi...Craig throws out an argument:<BR/><BR/><I>But I can see a possibile legal argument that might make a difference. That would be an argument that the <B>intent</B> of the GPL is to make the code public domain. That's really the only way I could see that the GPL could be harmed. If a judge agreed with that interpretation, it would basically turn all GPLed code into BSD-licensed code. But I don't think there are many judges that could be fooled into buying into such an argument.</I><BR/><BR/>I certain hope there aren't any judges silly enough to buy that argument.<BR/><BR/>The counter argument is simple and precise: if the author intended for his/her work to go into the public domain, there are mechanims to do that. That the author elected to use the GPL speaks of an intent to <B>not</B> place the material into the public domain.<BR/><BR/>Even if the GPL where found to be invalid in the US, the GPL'd code base would not magically be converted to public domain. That would be a due process violation of staggering proportion.<BR/><BR/>And FYI, a BSD license, while a lot more generous than the GPL, is not public domain. <I>Public domain</I> is the set of works whose copyrights have expired or have been placed there by their owners, copyrights abandonded. There is a difference, and it is important to understand the differences.Anonymoushttps://www.blogger.com/profile/13441809988487585009noreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143205164771534032006-03-24T12:59:00.000+00:002006-03-24T12:59:00.000+00:00You cannot legally be bound to the terms and condi...<I>You cannot legally be bound to the terms and conditions of a licence or contract without being aware of those conditions beforehand;</I><BR/><BR/>Pretty much everywhere, you are right about the contract, but wrong about the license. If the license forms <I>part</I> of a contract (i.e. I give you money in return for the software) then there are implied terms in that contract which cannot be overridden by fine print in a shrink wrap. Details vary depending on juristiction, but as a rule you have to know what you are agreeing to at the time the contract is formed. Shrink wrap licenses don't fulfil that requirement. But the GPL is not part of a contract, so there are no implied terms to override it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143188773042604092006-03-24T08:26:00.000+00:002006-03-24T08:26:00.000+00:00While I know little about US contract law, in Cana...While I know little about US contract law, in Canada, the distinction between a "licence" to use a licensers intellectual property, and a "contract" to use, are a little more fuzzy. In fact, there are what some might call, "glaring holes" which change the effect of "licences" compared "contracts." Up here, the two could be seen as the same. Anyway, interpreting a licence as a contract; (for the sake of argument for the purposes of its application to Canadian federal and provincial laws) if you do not obey a condition of the GPL--let's say use some GPL'd code in another work which is licensed in such a way to make it incompatible--would breach the agreement. Now as to whether or not a licence is actually a contract, that's where it gets a little fuzzy north of the 49th parallel.<BR/><BR/>As well, to the comment referring to the lack of any terms being agreed to beforehand; such licences have been shown to be unenforceable in Canada (c.f. Shrink-wrapped EULAs). You cannot legally be bound to the terms and conditions of a licence or contract without being aware of those conditions beforehand; that's just how it works up here.Anonymoushttps://www.blogger.com/profile/13441809988487585009noreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143180533720696792006-03-24T06:08:00.000+00:002006-03-24T06:08:00.000+00:00That's right jer - it isn't a contract. What's th...That's right jer - it isn't a contract. What's the quid pro quo to the copyright owner? If someone comes along and disobeys the terms and does whatever the hell they want with the code, what does the copyright owner get out of that?? That a complete corruption of precisely what the copyright owner *intends* by putting the code out under the GPL in the first place. If you want to stretch contract law to apply then I would suggest that the consideration in return for allowing use of the code is compliance with the conditions of the GPL. If you don't comply the contract is broken. What's the remedy? Damages? Specific performance?<BR/><BR/>As the article notes, you can't use the code in the first place. The GPL makes it clear that you're only allowed to use it if you comply with the GPL.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143104780543715452006-03-23T09:06:00.000+00:002006-03-23T09:06:00.000+00:00Jer: the GPL is a license - not a contract. It jus...Jer: the GPL is a license - not a contract. It just gives you permission that you wouldn't otherwise have under an existing law. But it's not a contract - there are no provisions agreed beforehand, no services rendered for monies exchanged, no milestones or penalties. If you have a fishing license, that normally trumps trespassing laws. But if you ignore the terms of the license you will just be asked to stop what you are doing under threat of prosecution under trespassing laws. There's no contract involved.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143097997452000802006-03-23T07:13:00.000+00:002006-03-23T07:13:00.000+00:00I've been explaining to people for a long time tha...I've been explaining to people for a long time that this is how the GPL works. Either you agree to its terms, and you can do what those terms say. Or you can ignore the terms, and take the default that copyright law allows -- basically, "fair use". Which is a lot more than you can do with proprietary code.<BR/><BR/>But I can see a possibile legal argument that might make a difference. That would be an argument that the <I>intent</I> of the GPL is to make the code public domain. That's really the only way I could see that the GPL could be harmed. If a judge agreed with that interpretation, it would basically turn all GPLed code into BSD-licensed code. But I don't think there are many judges that could be fooled into buying into such an argument. I think it's pretty clear that the intent is to offer the code <B>only</B> under the terms of the license.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-19798349.post-1143090591482223362006-03-23T05:09:00.000+00:002006-03-23T05:09:00.000+00:00There's one problem with Eben Moglen's logic thoug...There's one problem with Eben Moglen's logic though. In contract law, any given provision of an agreement may be struck down and avoided while other provisions may remain in tact. So it is entirely possible that the demonstrated case in the above quote could happen, citing those same reasons, and the "broken" provisions stricken down.<BR/><BR/>Food for thought.Anonymoushttps://www.blogger.com/profile/13441809988487585009noreply@blogger.com