Why the GPL Doesn't Need a Test Case
There was an amusing story in Groklaw yesterday, detailing the sorry end of utterly pointless legal action taken against the Free Software Foundation (FSF) on the grounds that FSF has conspired with International Business Machines Corporation, Red Hat Inc., Novell Inc. and other individuals to “pool and cross license their copyrighted intellectual property in a predatory price fixing scheme.”
It sounded serious, didn't it? Maybe a real threat to free software and hence Civilisation As We Know It? Luckily, as the Groklaw story explains, the judge threw it out in just about every way possible.
However, welcome as this news is, it is important to note that the decision does not provide the long-awaited legal test of the GPL in the US (a court has already ruled favourably on one in Germany). Some people seem to feel that such a test case is needed to establish the legal foundation of the GPL - and with it, most of the free software world. But one person who disagrees, is Eben Moglen, General Counsel for the FSF, and somebody who should know.
As he explained to me a few weeks ago:The stuff that people do with GPL code – like they modify it, they copy it, they give it to other people – is stuff that under the copyright law you can't do unless you have permission. So if they've got permission, or think they have permission, then the permission they have is the GPL. If they don't have that permission, they have no permission.
So the defendant in a GPL violation situation has always been in an awkward place. I go to him and I say basically, Mr So and So, you're using my client's copyrighted works, without permission, in ways that the copyright law says that you can't do. And if you don't stop, I'm going to go to a judge, and I'm going to say, judge, my copyrighted works, their infringing activity, give me an injunction, give me damages.
At this point, there are two things the defendant can do. He can stand up and say, your honour, he's right, I have no permission at all. But that's not going to lead to a good outcome. Or he can stand up and say, but your honour, I do have permission. My permission is the GPL. At which point, I'm going to say back, well, your honour, that's a nice story, but he's not following the instructions of the GPL, so he doesn't really have the shelter he claims to have.
But note that either way, the one thing he can't say is, your honour, I have this wonderful permission and it's worthless. I have this wonderful permission, and it's invalid, I have this wonderful permission and it's broken.
In other words, there is no situation in which the brokenness or otherwise of the GPL is ever an issue: whichever is true, violators are well and truly stuffed.
(If you're interested in how, against this background, the GPL is enforced in practice, Moglen has written his own lucid explanations.)
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8 comments:
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.
Food for thought.
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.
But I can see a possibile legal argument that might make a difference. That would be an argument that the intent 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 only under the terms of the license.
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.
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?
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.
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.
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.
You cannot legally be bound to the terms and conditions of a licence or contract without being aware of those conditions beforehand;
Pretty much everywhere, you are right about the contract, but wrong about the license. If the license forms part 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.
Craig throws out an argument:
But I can see a possibile legal argument that might make a difference. That would be an argument that the intent 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 certain hope there aren't any judges silly enough to buy that argument.
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 not place the material into the public domain.
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.
And FYI, a BSD license, while a lot more generous than the GPL, is not public domain. Public domain 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.
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.
That is, all licenses, are, in essence, contracts; but not all contracts are licenses.
One could certainly argue the point.
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.
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