We Were Wrong About the GPLs

https://writing.kemitchell.com/2023/10/13/Wrong-About-GPLs

by feross • 3 years ago

107 28 3 years ago

writing.kemitchell.com

jfengel• 3 years ago

Lemme see if I've got this straight. The Conservancy is arguing that the GNU Public License is not a license, because then they couldn't sue. (Only the person who owns the copyright, and made it available under the license, can sue.)

They're arguing that it's really a contract, and can sue because they're someone who benefits from the contract. (And really, anyone could, since we're all intended to benefit from the release of source code.)

If they lose, they would have to track down whoever originally wrote the software and get them to sue. Or maybe convince them to give ownership to the Conservancy?

Have I got that right?

gavinhoward5• 3 years ago

IANAL, but I wrote a few licenses and am working with a lawyer on them.

Minus details, yes, that's what I understand as well.

My licenses will have to make it clear that they are both licenses and contracts, including with third parties.

mr_toad• 3 years ago

I guess it doesn’t do any harm but does that really need to be spelled out? Under what circumstances could a license be enforced if it wasn’t a contract?

Further, if Vizio are claiming to not have a contract, then they don’t have a license, which means they are admitting in court to have wilfully and knowingly committed copyright infringement.

comex2• 3 years ago

They’re arguing that it’s part license part contract, not that it isn’t a license at all. The rest is as you say.

kemitchell4• 3 years ago

I do not believe Conservancy is arguing contract to the exclusion of license. They are arguing that they can sue under the source code requirement as a promise enforceable under contract law. Vizio is arguing that the source code requirement is only a license kind of requirement, so they'd have to be sued in federal court, and probably only by an owner of copyright in the software.

The awkwardness in the evidence comes from all the old writing, tracing back to FSF, arguing license to the exclusion of contract.

hnfong2• 3 years ago

This is the first time I’ve seen anyone attempt to explain FSF’s stance on the GPL not being a contract.

The explanation in the article is still somewhat unsatisfactory though, given that it seems to fly against all case law i’ve heard about.

Is there not a more substantial reason? Genuinely curious

gavinhoward5• 3 years ago

AIUI, the author is agreeing with you, saying that case law says that licenses are contracts and that FOSS advocates should adopt that position.

hnfong2• 3 years ago

I typed my original comment on my phone and now I read it it seems a bit unclear what I was trying to say.

Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)

kemitchell4• 3 years ago

Hey, gavinhoward. Good to see your nick again.

If I were going to summarize my mental model overall, I would say that terms like GPL pasted into license notices for published source code memorialize the terms of contracts that grant licenses. In the jargon, the deals between developers, users, and distributors are "license agreements".

The argument against revocation at will is either reliance or consideration---contract doctrines. If there's ambiguity or vagueness in the terms, it will be argued under rules of construction---again contract doctrines---not statutory interpretation or some copyright-specific scheme. Claims for exceeding the license or breaking rules in the terms will be infringement when preempted and breach otherwise, with a lot of work still to be done sharpening lines like the "extra element test" and "substantial use restrictions". The defense to plead against an infringement claim is license---a property concept.

The fundamental error of "license, not contract" is really the underlying idea that they're mutually exclusive. They're really integral and complementary. Between private parties, contracts are the means by which licenses are given and received.

When writing specifically about the GPLs, the claims are usually about the source code requirement. I can slip into just saying "contract" because that's where I see those claims heading.

kemitchell4• 3 years ago

I can't speak for the FSF, SFLC, or those who agreed with the views they promoted. I do think it's important to remember that this all started decades ago, when many fewer cases had been decided and what the law would be likely felt more up for grabs.

My best guess is in the blog post. A lot of activist attention was focused on trying to push back against strong copyright. If that work succeeded, it could have meant nothing if "evil" software companies just used contract law to restrict software instead.

salawat• 3 years ago

Ya know, it was pretty clearly laid out it seemed back in the 00's when I even first had copyleft explained to me.

There is copyright. Everything has it. There is also copyleft. It's an act of copyright. Comply by sharing when asked, or you've violated the terms unless you negotiated some alternative arrangement ahead of time.

I look at all the hand wringing by the legal profession and I just have to shake my head in confusion in how the semantics on this are still contested so in a profession where we even acknowledge that what is written may not be reflective of the original intent.

Then again, billions of dollars worth of captive audience/free developer hours are up for grabs. Suppose I shouldn't be surprised.

em-bee• 3 years ago

in the end all of this is a strategy to protect the intention and benefit of Free Software. as a FOSS developer and user i don't care about the legal distinction but about the resulting effect.

as our understanding of the law improves and as the methods and strategies to take advantage of public code evolves, our strategies to defend against misuse must necessarily also evolve. for me the question is not, which interpretation is right, but which one works to convey and protect the intention of FOSS licenses.

the most important aspect in my eyes is that the intention has always been consistent and will not change, and that all changes in the explanation and interpretation are intended to uphold that intention.

gumby• 3 years ago

This points out the reason assignments are so important: standing. Ultimately the court looks at the “person” who is being “injured” and the way the US looks at things that’s the legal owner.

The FSF tried to say that everybody was injured when the GPL is violated (a position I consider morally true) but as the article points out it’s no longer the 1980s.

Note: I wrote the original blanket assignment (and executed it) and the first gnu library license (LGPL), though they have since involved. So my perspective is looking back at the 80s as well.

rurban• 3 years ago

So why isn't the FSF suing then? On state law (copyright law). Much broader than just California, much higher win

AntiMS• 3 years ago

The article says early on that under California law, third parties intended to benefit from a contract can enforce those terms and that's "the crux" of Conservancy's lawyers' argument. But near the end it says that depending on the ruling in Conservancy v. Visio, we may get precedent that "anyone in the United States who wants GPL source code can sue for it, contributor or not." Any idea how it is that this case about California law could set precedent relevant to little old me who lives in Not-California, U.S.A.?

Of course it would be relevant to me because if someone sues some other hardware vendor for GPL'd source code and wins pointing at precedent set by Conservancy v. Visio, they'll likely publish that source online where I can get it, but that's not what I'm asking about.

We Were Wrong About the GPLs

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