7 ms·

The GPL is a License, Not a Contract

101 points by gnosis 16y ago

tedunangst 16y ago
The "you'll be forced to give away the code" fallacy is not just FUD spread by GPL haters. I've seen plenty of GPL advocates make the same remark, except they say it's a good thing. I mention this because the linked article strongly implies that only evildoers would ever spread untruths about the GPL. The GPL is long and complex and the FSF's own guidelines to "clarify" things are anything but clear.
- SwellJoe 16y ago
  I find the FSF FAQ about the GPL (http://www.gnu.org/licenses/gpl-faq.html http://www.gnu.org/licenses/gpl-faq.html) extraordinarily clear. Have you read it? It covers lot of the common questions people ask, including how GPL and non-GPL code interact from a legal perspective. I've pretty much always found that every GPL argument (and I've dealt with a lot of them, having worked with GPL-licensed code in commercial products for over a dozen years) is settled by simply pointing someone to the correct portion of the FSF documentation. Yes, Open Source and Free Software fans often don't understand the license or its implications, and more people are woefully ignorant of its meaning and purpose than actually understand it, but I don't believe the blame can be placed on the FSF documentation on the subject. As licenses go, it's pretty plainly spoken, and as clarification of licenses go, the FSF goes into extensive detail for anyone that wants to actually look into it rather than starting flame wars based on whatever crazy notion someone has about the GPL and what they want it to mean. I really don't think the blame can be placed on the FSF in this regard. People just don't RTFM, especially TFM for licenses.
  - tedunangst 16y ago
    That is the document I'm talking about. I think their answers to questions about derivative works and whatnot (basically the "how do I violate the GPL without getting caught?" questions) are not entirely forthcoming. I can't fault them too much for this, as providing a truthful and complete answer would amount to being a guide to circumventing the GPL which is not in their interest, but the questions and answers are carefully phrased to avoid answering the real question you're probably asking. There is more wiggle room than the FSF would like people to believe (although it's probably also less wiggle room than those people hope for).
    - SwellJoe 16y ago
      Perhaps I'm just a GPL fanboy, but I don't see how it's a failing of the FAQ to provide a very clear, and understandable, path to not violating the license. And, I don't see how documenting a strict and good faith approach to following the license is in any way in conflict with the original article. If you read the FAQ (and the license), and follow the terms clearly laid out therein, you can't possibly be in violation of the license and you can't possibly put yourself in a situation where you accidentally force your code to become Free Software (though that's a nearly impossible outcome, even if you don't understand the GPL on any level, which is the point of the original article). The FAQ even truthfully covers the situations wherein a company might want to use the GPL for a Free Software version of their code while also retaining copyright and offering other licenses (I've had to refer to this particular FAQ many times in flame wars about my own products over the years, since I always hold the copyright on the products I'm dual-licensing, and I use the GPL for the Open Source releases), and while the ethical position of the FSF often creeps into legal discussion, the facts are still quite clear. I'm not sure I understand why the "real question" would be "how can I use this code without distributing it under the same terms I received it under?" Aren't we assuming good faith on the part of the "victim" of the GPL? Frankly, all the flame wars about the GPL and the FSF always seem motivated by something other than lack of clarity about the license. They seem based on disagreements with the motives of the FSF, and I find it disingenuous to make it about the license (which is clear to most people who actually read it, and among the best documented software licenses in the world for those who can't grasp its nuances merely from the license itself). If you don't like the Free Software concept, and think BSD or public domain or something else is better for you, or your business, or your customers, or whoever, then say so. Don't argue that the GPL is incomprehensible or the FSF is trying to hide facts about the GPL (the documentation for the GPL v3 is very enlightening and transparent about loopholes in v2 they've tried to close and their reasoning for the changes and additions to the license), as it really isn't.
      - srean 16y ago
        I think you nailed it in the last paragraph. Saving it for use later (with proper credits, ofcourse).
    - 16y ago
- rbanffy 16y ago
  You are not "forced to give away code" any more than you are forced to use whatever others built and generously made available to you as a starting point or as a building block under the condition you are no less generous. Feel free to reinvent as many wheels as you like to keep for yourself.
- yason 16y ago
  The reason "you'll be forced to give away the code" probably comes from the circumstances where taking down a product while rewriting all GPL parts from clean table is a worse problem, financial or otherwise, than GPL'ing the whole source code. Given that you wish to keep using the GPL parts, too, then the truth really is that you will be forced to give away your code. It seems that many do. How many times have you seen in the news that "Initech taking their MongrelSuite(tm) off the market for the time being because of violations of the GPL" versus "Initech forced to relicense their MongrelSuite(tm) in open source due to viral GPL licensing"?
  - wazoox 16y ago
    From recent examples (Apple AppStore, Sony, Nintendo), products are usually pulled from the market rather than re-licensed, so your argument doesn't hold.
Jach 16y ago
Yeah, it's annoying if I'm installing something and the installer treats the GPL (or MITL) as a EULA. I don't have to accept/agree to the terms to use it.
- caf 16y ago
  You do require a license from the copyright owner to use the software. The installer is just informing you of one such license that is available to you, and the conditions of that license. It is also usually the only such license, unless you have negotiated separately with the copyright owner.
  - nitrogen 16y ago
    This is one point over which there is some controversy. I would argue that a copyright owner merely distributing software gives one the right to use that software as it was intended, just as distributing a book gives a recipient the right to read it. A license can only restrict that right, or grant additional rights one would not have under copyright. The GPLv3 preemptively deals with potential counterarguments to this point of view by explicitly affirming the right to use the software, but using reductio ad absurdum, it seems ridiculous to be able to distribute a work under the protection of copyright law without implicitly giving the lawful recipients of the work the ability to use it as intended.
    - caf 16y ago
      There are plenty of examples of commercial software that is distributed by the copyright owner free-of-charge, but requests agreement to a conditional license during the installation process. I believe that in the US, this relies on a court ruling (sorry, no cite) that as the use of software inherently requires making a copy of it, such use is a copy right. This is unlike the case of a book or a painting.
      - nitrogen 16y ago
        There are also examples of commercial software distributed free of charge with no license agreement whatsoever. I sincerely hope that the decision that using software is a "copy" right not implicitly granted by its distribution is overturned, as the notion is truly ludicrous. That doesn't necessarily mean that EULAs would be unenforcable; one could still argue that the license page of the installer is an effective access control mechanism between the user and the software, possibly invoking some twisted interpretation of the DMCA. ...and I hate that I feel like I have to put this, but as I mentioned elsewhere, IANAL.
tzs 16y ago
Bare licenses (e.g., a license that is not really a contract) are revokable. If Groklaw and Moblen are right, the copyright owner of GPLv2 code can un-GPL the code. This is covered in Rosen's book on open source licensing, and is one of the reasons he recommends making sure your software licenses are in fact contracts.
- tedunangst 16y ago
  "All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met." Edit: Ah, you said GPLv2, my quote is taken from v3. Looks like they fixed it.
- wnoise 16y ago
  In such a case promissory estoppel would be a very good defense. Distributing your work under the GPL is a strong indication that you intend others to build on it, and their reliance on this is reasonable.
  - tzs 16y ago
    In which case you've essentially got a contract, with promissory estoppel serving as a substitute for consideration. It's interesting that if one searches, in either law textbooks or in the case law, there just isn't much that makes a distinction between licenses and contracts outside of real property law, where they are usually talking about bare licenses. In almost all other contexts, the terms are largely used interchangeably, although it seems license is more likely to be used when it is a one to many arrangement (e.g., one party is making essentially the same contract with numerous other parties) and contract is more likely when it is one to one.
- zppx 16y ago
  I doubt you can do this with whatever license you're using unless you put that explicitly on the terms. But I'm no lawyer and neither a GPL advocate, I'm only interested understanding licenses. EDIT: I understand that the previous distribution license is revoked only if you fail to comply with the original term under which you agreed to use the software/code.
hughw 16y ago
The article starts off reasonably. The first sentence pulls you in, describing the case you fear most: you have "inadvertently" incorporated GPL code into your proprietary code. But by the time it gets to the conclusion,you, the inadvertent infringer have become a thief. If found to be infringing, "you do have a choice under the GPL license: you can stop using the stolen code and write your own, or you can decide you'd rather release under the GPL." Hey! The presumption of the article was that I inadvertently infringed. It was an accident. "Stolen" has a different connotation. If I inadvertently infringed, I might have peppered that GPL code throughout miles of my own code. The "choice" might be no choice at all, in practical terms. Hey, you could always choose to go out of business. This article reinforces the claim it purports to refute: that infringers "can be forced to release their proprietary code under the GPL". No defending infringers mind you. Just saying, the article seems to confirm that the FUD isn't FUD after all.
- SwellJoe 16y ago
  More FUD. "If I inadvertently infringed, I might have peppered that GPL code throughout miles of my own code." Really? You "inadvertently" used miles of code copyrighted by other people without bothering to understand the license under which you obtained said code? That's a stretch. Even if you don't understand the GPL, as a developer with knowledge enough to locate the code you must understand that copyrighted code is probably made available to you under some terms that you must comply with. Whether you buy a license to use the code, or received a license for free, you can't possibly be a computer programmer with zero notion of what "license" or "copyright" means. "Just saying, the article seems to confirm that the FUD isn't FUD after all." The FUD is that once you've introduced GPL code into your software, no matter how small a piece or for what reason, you could be forced to GPL all of your proprietary code. That's simply not true. If, on the other hand, you used so much GPL code that your product can't exist without it and you can't possibly rewrite the violating code, and you did so without putting forth any effort to understand or comply with the license under which you received the code, the best result I can think of would be for your company to go out of business.
  - hughw 16y ago

101 points by gnosis 16y ago

The "you'll be forced to give away the code" fallacy is not just FUD spread by GPL haters. I've seen plenty of GPL advocates make the same remark, except they say it's a good thing. I mention this because the linked article strongly implies that only evildoers would ever spread untruths about the GPL. The GPL is long and complex and the FSF's own guidelines to "clarify" things are anything but clear.

SwellJoe 16y ago
I find the FSF FAQ about the GPL (http://www.gnu.org/licenses/gpl-faq.html http://www.gnu.org/licenses/gpl-faq.html) extraordinarily clear. Have you read it? It covers lot of the common questions people ask, including how GPL and non-GPL code interact from a legal perspective. I've pretty much always found that every GPL argument (and I've dealt with a lot of them, having worked with GPL-licensed code in commercial products for over a dozen years) is settled by simply pointing someone to the correct portion of the FSF documentation. Yes, Open Source and Free Software fans often don't understand the license or its implications, and more people are woefully ignorant of its meaning and purpose than actually understand it, but I don't believe the blame can be placed on the FSF documentation on the subject. As licenses go, it's pretty plainly spoken, and as clarification of licenses go, the FSF goes into extensive detail for anyone that wants to actually look into it rather than starting flame wars based on whatever crazy notion someone has about the GPL and what they want it to mean. I really don't think the blame can be placed on the FSF in this regard. People just don't RTFM, especially TFM for licenses.
- tedunangst 16y ago
  That is the document I'm talking about. I think their answers to questions about derivative works and whatnot (basically the "how do I violate the GPL without getting caught?" questions) are not entirely forthcoming. I can't fault them too much for this, as providing a truthful and complete answer would amount to being a guide to circumventing the GPL which is not in their interest, but the questions and answers are carefully phrased to avoid answering the real question you're probably asking. There is more wiggle room than the FSF would like people to believe (although it's probably also less wiggle room than those people hope for).
  - SwellJoe 16y ago
    Perhaps I'm just a GPL fanboy, but I don't see how it's a failing of the FAQ to provide a very clear, and understandable, path to not violating the license. And, I don't see how documenting a strict and good faith approach to following the license is in any way in conflict with the original article. If you read the FAQ (and the license), and follow the terms clearly laid out therein, you can't possibly be in violation of the license and you can't possibly put yourself in a situation where you accidentally force your code to become Free Software (though that's a nearly impossible outcome, even if you don't understand the GPL on any level, which is the point of the original article). The FAQ even truthfully covers the situations wherein a company might want to use the GPL for a Free Software version of their code while also retaining copyright and offering other licenses (I've had to refer to this particular FAQ many times in flame wars about my own products over the years, since I always hold the copyright on the products I'm dual-licensing, and I use the GPL for the Open Source releases), and while the ethical position of the FSF often creeps into legal discussion, the facts are still quite clear. I'm not sure I understand why the "real question" would be "how can I use this code without distributing it under the same terms I received it under?" Aren't we assuming good faith on the part of the "victim" of the GPL? Frankly, all the flame wars about the GPL and the FSF always seem motivated by something other than lack of clarity about the license. They seem based on disagreements with the motives of the FSF, and I find it disingenuous to make it about the license (which is clear to most people who actually read it, and among the best documented software licenses in the world for those who can't grasp its nuances merely from the license itself). If you don't like the Free Software concept, and think BSD or public domain or something else is better for you, or your business, or your customers, or whoever, then say so. Don't argue that the GPL is incomprehensible or the FSF is trying to hide facts about the GPL (the documentation for the GPL v3 is very enlightening and transparent about loopholes in v2 they've tried to close and their reasoning for the changes and additions to the license), as it really isn't.
    - srean 16y ago
      I think you nailed it in the last paragraph. Saving it for use later (with proper credits, ofcourse).
  - 16y ago
rbanffy 16y ago
You are not "forced to give away code" any more than you are forced to use whatever others built and generously made available to you as a starting point or as a building block under the condition you are no less generous. Feel free to reinvent as many wheels as you like to keep for yourself.
yason 16y ago
The reason "you'll be forced to give away the code" probably comes from the circumstances where taking down a product while rewriting all GPL parts from clean table is a worse problem, financial or otherwise, than GPL'ing the whole source code. Given that you wish to keep using the GPL parts, too, then the truth really is that you will be forced to give away your code. It seems that many do. How many times have you seen in the news that "Initech taking their MongrelSuite(tm) off the market for the time being because of violations of the GPL" versus "Initech forced to relicense their MongrelSuite(tm) in open source due to viral GPL licensing"?
- wazoox 16y ago
  From recent examples (Apple AppStore, Sony, Nintendo), products are usually pulled from the market rather than re-licensed, so your argument doesn't hold.

Jach 16y ago

Yeah, it's annoying if I'm installing something and the installer treats the GPL (or MITL) as a EULA. I don't have to accept/agree to the terms to use it.

caf 16y ago
You do require a license from the copyright owner to use the software. The installer is just informing you of one such license that is available to you, and the conditions of that license. It is also usually the only such license, unless you have negotiated separately with the copyright owner.
- nitrogen 16y ago
  This is one point over which there is some controversy. I would argue that a copyright owner merely distributing software gives one the right to use that software as it was intended, just as distributing a book gives a recipient the right to read it. A license can only restrict that right, or grant additional rights one would not have under copyright. The GPLv3 preemptively deals with potential counterarguments to this point of view by explicitly affirming the right to use the software, but using reductio ad absurdum, it seems ridiculous to be able to distribute a work under the protection of copyright law without implicitly giving the lawful recipients of the work the ability to use it as intended.
  - caf 16y ago
    There are plenty of examples of commercial software that is distributed by the copyright owner free-of-charge, but requests agreement to a conditional license during the installation process. I believe that in the US, this relies on a court ruling (sorry, no cite) that as the use of software inherently requires making a copy of it, such use is a copy right. This is unlike the case of a book or a painting.
    - nitrogen 16y ago
      There are also examples of commercial software distributed free of charge with no license agreement whatsoever. I sincerely hope that the decision that using software is a "copy" right not implicitly granted by its distribution is overturned, as the notion is truly ludicrous. That doesn't necessarily mean that EULAs would be unenforcable; one could still argue that the license page of the installer is an effective access control mechanism between the user and the software, possibly invoking some twisted interpretation of the DMCA. ...and I hate that I feel like I have to put this, but as I mentioned elsewhere, IANAL.

tzs 16y ago

Bare licenses (e.g., a license that is not really a contract) are revokable. If Groklaw and Moblen are right, the copyright owner of GPLv2 code can un-GPL the code. This is covered in Rosen's book on open source licensing, and is one of the reasons he recommends making sure your software licenses are in fact contracts.

tedunangst 16y ago
"All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met." Edit: Ah, you said GPLv2, my quote is taken from v3. Looks like they fixed it.
wnoise 16y ago
In such a case promissory estoppel would be a very good defense. Distributing your work under the GPL is a strong indication that you intend others to build on it, and their reliance on this is reasonable.
- tzs 16y ago
  In which case you've essentially got a contract, with promissory estoppel serving as a substitute for consideration. It's interesting that if one searches, in either law textbooks or in the case law, there just isn't much that makes a distinction between licenses and contracts outside of real property law, where they are usually talking about bare licenses. In almost all other contexts, the terms are largely used interchangeably, although it seems license is more likely to be used when it is a one to many arrangement (e.g., one party is making essentially the same contract with numerous other parties) and contract is more likely when it is one to one.
zppx 16y ago
I doubt you can do this with whatever license you're using unless you put that explicitly on the terms. But I'm no lawyer and neither a GPL advocate, I'm only interested understanding licenses. EDIT: I understand that the previous distribution license is revoked only if you fail to comply with the original term under which you agreed to use the software/code.

hughw 16y ago

The article starts off reasonably. The first sentence pulls you in, describing the case you fear most: you have "inadvertently" incorporated GPL code into your proprietary code. But by the time it gets to the conclusion,you, the inadvertent infringer have become a thief. If found to be infringing, "you do have a choice under the GPL license: you can stop using the stolen code and write your own, or you can decide you'd rather release under the GPL." Hey! The presumption of the article was that I inadvertently infringed. It was an accident. "Stolen" has a different connotation. If I inadvertently infringed, I might have peppered that GPL code throughout miles of my own code. The "choice" might be no choice at all, in practical terms. Hey, you could always choose to go out of business. This article reinforces the claim it purports to refute: that infringers "can be forced to release their proprietary code under the GPL". No defending infringers mind you. Just saying, the article seems to confirm that the FUD isn't FUD after all.

SwellJoe 16y ago
More FUD. "If I inadvertently infringed, I might have peppered that GPL code throughout miles of my own code." Really? You "inadvertently" used miles of code copyrighted by other people without bothering to understand the license under which you obtained said code? That's a stretch. Even if you don't understand the GPL, as a developer with knowledge enough to locate the code you must understand that copyrighted code is probably made available to you under some terms that you must comply with. Whether you buy a license to use the code, or received a license for free, you can't possibly be a computer programmer with zero notion of what "license" or "copyright" means. "Just saying, the article seems to confirm that the FUD isn't FUD after all." The FUD is that once you've introduced GPL code into your software, no matter how small a piece or for what reason, you could be forced to GPL all of your proprietary code. That's simply not true. If, on the other hand, you used so much GPL code that your product can't exist without it and you can't possibly rewrite the violating code, and you did so without putting forth any effort to understand or comply with the license under which you received the code, the best result I can think of would be for your company to go out of business.
- hughw 16y ago