IP-WARS.NET - a forward command post of the IP Wars
create account| Front Page|Mission|Standard Operating Procedures|Operating Instructions(aka FAQ's)|Privacy Policy|Site Stats/Info|Admin Actions|Search
Sections:General|IP|SCO v World |Microsoft|grok*/OSRM|IPW Site Meta|Logbooks|Diaries|Legal Documents|View All Articles

Does it really matter if the GPL is a contract?


Copyright Issues

By codswallet, Section Diary
Posted on Sun May 15th, 2005 at 06:24:44 EST

A discussion of how much it matters and in what countries.

There's been a lot of heated debate about whether the GPL is a contract, but it always seems to be assumed that this is an important question, and usually that it is universally important. It is interesting to examine these assumptions.

1) Where is the GPL not a contract?
In order for a binding document to not be a contract, it has to be deficient in one or more of the required elements. In law derived from English common law, a contract requires a true agreement between competent parties with an exchange of consideration. This, however is true (as far as I've been able to research it) only in the US, Canada (other than Quebec), England (but not Scotland. I have no information on the rest of the UK and the Channel Islands, the British West Indies, Gibraltar, the Falklands...), Australia and New Zealand. It is only in these countries that the issue has any potential significance.

2) Where does it matter if the GPL is a contract?
In order for it to matter, there has to be some legal advantage to one of the two possibilities. In the US, cpntract disputes are handled in state court, while infringement is handled in Federal Court. Also the different states have subtly different contract law. Finally, with infringement comes the possibility of statutory damages (no need to prove actual damages) and the presumption of irreparable injury when seeking an injunction. While Australia, Canada and the UK (to some extent) have federal systems, their copyright laws are sufficiently different from those of the US, that the contract question doesn't appear to make that much difference.

3) Is the GPL enforceable in the US regardless
The answer is fairly clearly yes. If the copyright holder explicitly revokes the license for cause, then, after some period required for fairness, any continued reliance on the license would be infringement. This is true whether the license is a pure license, an agreement without consideration, or a contract. The GPL could be improved in this area by explicit language about rescinding the license. Such language shouldn't affect the GPL's status as a pure license, to whatever extent it exists. However, no court would hold that absent such language, the copyright holder would have no right to rescind the license for violation of its provisions.

4) If the GPL is a pure license, does it escape contract law?
Almost certainly not. Contract law applies to agreements that aren't contracts; it just doesn't have as much to say. It would certainly be used to interpret the meaning of the GPL, since the copyright act provides that nonexclusive licenses are regulated by state law (other than possibly the question of infringement).

5) Are all violations of the GPL infringement?
Probably not. If the GPL was a contract, then any provisions that were considered covenants of the agreement, as opposed to conditions of the license , would not be infringement, and the remedy would be an action for breach of contract in state court. There is no reason that the situation should be different if the GPL is not a contract. The general rule is that conditions are bound to the scope of the license. A provision that allowed for serial rights but not movie rights would be a condition. A provision for payment of royalties would generally be a covenant. It is possible that the GPL could be modified so that the source distribution requirement was a condition, but it is not clear that this is now the case, since the source doesn't have to be distributed with the derivative work. A condition usually needs to be something that is always required without which distribution is not allowed. Something that happens separately or later or somewhere else is suspect. If, for instance, a royalty agreement required a receipt for payment in full to distribute, it might rise to the level of a condition.

6) If the GPL is a pure license and it has provisions that are covenants, is there a remedy for violations of them?
My feeling is that the answer is yes, but at this point it's time to say IANAL. Ask one. Better yet, ask several.

7) Will the courts uphold the language that makes the GPL self-terminating on breach?
Probably not. The only cases in this area have involved contracts, but the arguments from fairness are similar. The penalties for infringement are so severe, that the courts have rejected self-termination. The argument is that it would be possible to terminate the license without realizing it by some technical violation and be hit with enormous statutory damages. If the GPL is a contract, then self-termination is definitely out. If it isn't, the odds still seem to be against. The SCO memorandum on IBM's claims of infringement cites most of the important case law, though their presentation is a bit confused. Unfortunately we don't have a reply from IBM.

< MOG, Unmasked (Satire) (3 comments) | SCO's claims according to SCO (1 comments) >
Display: Sort:
Does it really matter if the GPL is a contract? | 20 comments (20 topical, 0 editorial, 0 hidden)
Re: Does it really matter if the GPL is a contract (3.75 / 4) (#1)
by mck9 (mck9 at swbell.,net) on Sun May 15th, 2005 at 09:42:03 EST
(User Info) http://home.swbell.net/mck9/ct/
Alas, I have no answers, only more questions.

Under certain circumstances section 3(b) of the GPL requires the that the licensee:

Accompany [a binary distribution] with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange;
First question: if I redistribute software on these terms, does my offer to provide the source code constitute a "consideration," as the term is used in contract law?

Second question: suppose I accompany the distribution with a written offer, and so forth, just as the GPL requires -- but then I don't honor the offer. Does the offer satisfy the requirements of the GPL, even though I don't honor it? Arguably the GPL just says I have to make the offer; it doesn't say I have to honor it. On such quibbles are legal careers built.

Let's assume that the GPL requires that I honor the offer as well as offer it. Assuming also that the self-termination clause is valid, it presumably wouldn't apply until I had denied a request for the source code. Thus the initial distribution would be compliant with the GPL, but any distribution after the first denial would be an infringement.

If I failed to honor the offer because I had gone out of business, then I wouldn't be distributing any more anyway, so there would be no infringement. However I could distribute through a succession of temporary shell companies, with no intention ever to provide the source code. Each shell company would be technically in compliance when considered separately.

I hope this idea never becomes more than hypothetical.

  • Re: Does it really matter if the GPL is a contract by codswallet, 05/15/2005 12:30:01 EST (4.00 / 5)
    • Re: Does it really matter if the GPL is a contract by Sunny, 05/21/2005 20:46:49 EST (4.00 / 3)
      • Re: Does it really matter if the GPL is a contract by codswallet, 05/22/2005 23:03:52 EST (4.00 / 3)
      • Re: Does it really matter if the GPL is a contract by FrogstarRobot, 05/21/2005 23:52:15 EST (3.50 / 4)
        • Re: Does it really matter if the GPL is a contract by codswallet, 05/22/2005 23:13:19 EST (3.66 / 3)
          • Re: Does it really matter if the GPL is a contract by FrogstarRobot, 05/23/2005 00:12:50 EST (3.66 / 3)
            • Re: Does it really matter if the GPL is a contract by codswallet, 05/23/2005 00:41:54 EST (3.66 / 3)
              • Re: Does it really matter if the GPL is a contract by Potential Recruit, 05/24/2005 18:44:00 EST (none / 2)
                • Re: Does it really matter if the GPL is a contract by FrogstarRobot, 05/24/2005 23:16:09 EST (3.60 / 5)
                  • Re: Does it really matter if the GPL is a contract by codswallet, 05/25/2005 00:15:39 EST (3.83 / 6)
    • Re: Does it really matter if the GPL is a contract by ColonelZen, 05/22/2005 00:44:58 EST (3.50 / 4)
      • Re: Does it really matter if the GPL is a contract by ColonelZen, 05/22/2005 01:17:37 EST (3.50 / 4)
        • Re: Does it really matter if the GPL is a contract by codswallet, 05/22/2005 23:16:42 EST (3.33 / 3)
Long-term behavoiour of the parties (3.60 / 5) (#2)
by sphealey on Sun May 15th, 2005 at 10:17:30 EST
(User Info)
I am no lawyer, so take this for what you will, but I have always been told in various engineering law and business law classes, and have seen from reading the trascripts of various business lawsuits, that in a business contract case the court will take into account the long-term behaviour of the parties and the industry.

For the last 10 years, and intensively for the last 5 years, individuals, corporate entities (profit and non-profit), and businesses (some of them very large, such as IBM) have been behaving as if the GPL means what Stallman and Moglen say it means.  That is, following the intent of the creation.

I have a very hard time seeing any court stepping in and saying, oh, these millions of people and thousands of businesses around the world were wrong, and we are going to interpret this agreement according to a set of principles that neither its author nor those using it intended.  (Unless this fix is in, of course, which is possible in these giganto-dollar cases.  But very hard to pull off).

The SCO Group took a shot at the foundation of the GPL.  They seem to have backed off from that line of attack at this point.  Unless TSG wins a big victory and Kimball explictly rejects the intent of the GPL in his decision (I am assuming here this case will never actually get to a jury, which would complicate things), I think this worrying is useful but a bit overwrought.

sPh

  • Re: Long-term behavoiour of the parties by codswallet, 05/15/2005 12:35:44 EST (3.60 / 5)
Re: Does it really matter if the GPL is a contract (3.00 / 4) (#5)
by Potential Recruit on Tue May 17th, 2005 at 02:34:50 EST
What does the L in the GPL stand for?

  • Re: Does it really matter if the GPL is a contract by Nobbut Laikin, 05/18/2005 04:51:16 EST (3.75 / 4)
    • Re: Does it really matter if the GPL is a contract by Sunny, 05/19/2005 18:09:05 EST (3.83 / 6)
Bye bye spambot (none / 0) (#20)
by Potential Recruit on Tue Nov 28th, 2006 at 11:50:10 EST
This used to be a spambot post that is flooding the site. Due to volume, I had to resort to this while I work to block access by these bots. My apologies - thanks for your patience.

Jeff

Does it really matter if the GPL is a contract? | 20 comments (20 topical, 0 editorial, 0 hidden)
Display: Sort:

Links

Firefox 2

Use OpenOffice.org

Add to Technorati Favorites

Join EFF Today

ToTehMoon web site button

~ Merkey v The Internet et al Docs
~ Yahoeuvre
~ tuxrocks.com (SCO cases legal docs)
~ scofacts.org
~ eagle.petrofsky.org
~ Zen's Den
~ Yahoo SCOX Message Board
~ Lamlaw
~ Microsoft Watch
~ Groklaw
~ Korgwal - a Groklaw mirror
~ nosoftwarepatents.com
~ Flame Warriors
~ SCOXE Wars
~ Get your Merkey Number here!
~ Digital Law Online

Recent Comments

Breaking News and External Article Comments
General News – General Articles
by ColonelZen, January 5
60 comments
» SCO Lifeboat List from Stats_for_all – AncientBrit, May 6
» Not a single comment on the Novell... – sphealey, Jul 22
» Re: Not a single comment on the Novell... – AncientBrit, Aug 8

Eagle Loses Appeals
General News – General Articles
by JCausey, December 15
1 comment
» Re: Eagle Loses Appeals – br3n, Jan 7

The Chinese Room Revisited, Thoughts on...
General News – Diary
by ColonelZen, November 24
1 comment
» Re: The Chinese Room Revisited,... – ColonelZen, Nov 24

How to Transition a Windows Shop to Linux
General News – General Articles
by JCausey, November 21
3 comments
» Re: How to Transition a Windows Shop to... – ColonelZen, Nov 22
» Re: How to Transition a Windows Shop to... – JCausey, Nov 23
» Re: How to Transition a Windows Shop to... – ColonelZen, Nov 23

Advocacy
General News – Diary
by br3n, October 29
3 comments
» Re: Advocacy – br3n, Nov 2
» Re: Advocacy – ColonelZen, Nov 2
» Re: Advocacy – br3n, Nov 4

Very Bad News for Darl and Ralph
SCO v The World – Diary
by ColonelZen, October 13
7 comments
» Re: OT advocacy – br3n, Oct 26
» Re: OT advocacy – JCausey, Oct 28
» Re: OT advocacy – br3n, Oct 29

Some SCOX Financial Analysis
SCO v The World – SCO Related Articles
by JCausey, September 21
13 comments
» Re: Some SCOX Financial Analysis – br3n, Oct 3
» Re: Some SCOX Financial Analysis – ColonelZen, Oct 3
» Re: Some SCOX Financial Analysis – br3n, Oct 6

Open Source in Education - Opening Doors
General News – General Articles
by JCausey, September 28
1 comment
» Re: Open Source in Education - Opening... – br3n, Sep 29

An IPOWER ful experience
General News – Diary
by ColonelZen, September 25
6 comments
» IPOWER SysAdmin Doesn't Do Weekends!! – ColonelZen, Sep 29
» Re: An IPOWER ful experience – ColonelZen, Sep 29
» Re: An IPOWER ful experience – ColonelZen, Sep 29

Learning C#
Microsoft – Diary
by ColonelZen, September 23
1 comment
» Re: Learning C# – ColonelZen, Sep 23

Comment search...

Recent Diaries

SCO has a Potential and Credible BILLION Dollar Liability
by ColonelZen - March 15

The Chinese Room Revisited, Thoughts on Consciousness
by ColonelZen - November 24
1 comment


Advocacy
by br3n - October 29
3 comments


An IPOWER ful experience
by ColonelZen - September 25
6 comments


Learning C#
by ColonelZen - September 23
1 comment


Getting ruby DBI for Mysql and Postgresql working on FC 6
by ColonelZen - March 7

Declaration of Linus Torvalds
by nedu - February 13
1 comment


Declaration of M. Douglas McIlroy
by nedu - February 12
6 comments


Declaration of Ulrich Drepper
by nedu - February 11
1 comment


Declaration of K. Y. Srinivasan
by nedu - February 11


More Diaries...

Login

Make a new account

Username:
Password:

Older Stories

Monday May 28th
Why SCO Does Not Own the Unix Copyrights
   (0 comments)

Thursday April 5th
It Can Really Happen - Eagle Broadband Delisting from AMEX
   (5 comments)

Monday March 12th
OpenOffice.org Sends Open Letter to Dell
   (0 comments)

Tuesday March 6th
Preliminary Order in Prohibition
   (2 comments)

Monday January 15th
[Linux-ia64] optimizing __copy_user
   (12 comments)

Older Stories...

Related Links

~ codswallet's Diary

SourceForge Logo Powered by Scoop

All trademarks and copyrights on this page are owned by their respective companies or owners.
Comments, articles and logbooks are owned by the Poster. By posting on the ip-wars.net web site, all posters grant a license to ip-wars.net to publish the content and release it pursuant to the Creative Commons License that covers the rest of the site. For more details, please check out the Standard Operating Procedures. Also, please read the Privacy Policy for the site. Finally, DO NOT send e-mail to the site owner (Jeff Causey) unless you have read and agree to the terms regarding e-mail included in the Standard Operating Procedures.
Everything else © 2004, 2005, 2006, 2007 ip-wars.net and Jeffrey G. Causey and is licensed under a
Creative Commons License
This work is licensed under a Creative Commons License.