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> The mantra of “the GPL is not a contract” is a mistruth that has been so often repeated that it became widely accepted and typically unchallenged. (We expect

> The mantra of “the GPL is not a contract” is a mistruth that has been so often repeated that it became widely accepted and typically unchallenged. (We expect you'll hear this theory repeated even more loudly now that the our Vizio lawsuit brought the question to the forefront in a federal court case.) Yet, prominent legal experts outside of FOSS social circles have long scoffed at the assertion. Indeed, case law in the USA has held the opposite. In multiple cases, courts have been convinced, specifically, that the GPL operates as both a contract and a copyright license. The law appears clear on this, and this is among the reasons why we believe our motion to remand will succeed. In short, we'll say it plainly here and now for everyone: the GPL operates both as a copyright license and as a contract; litigation can proceed under either of those legal theories. I think that if this case succeeds, it would actually be a huge blow for the GPL. We are actually just now starting to get over all the FUD about the GPL and convince corporate lawyers to allow using GPL. However, if they win this case on those terms, I expect every corporate lawyer to to have major heartburn about GPL. If for example, they successfully are glue that GPL gives every user of the software the right to sue, doesn’t that massively increase liability for the corporation? I can see many lawyers pushing to completely ban copyleft licensed software use.

pabs3 5y ago
The copyright holders can already sue for GPL violations (and some do), so if corporate lawyers are fine with the GPL now and companies are complying now, they should be fine after the case is won. The problem will come for companies like Vizio who aren't complying.
zucker42 5y ago
In the argument of the SF conservancy, the contract is between a distributor of the software and someone receiving the software. If a company only writes the GPL software in question, they wouldn't be liable to their customers in the same way as in this article because they aren't on the receiving end of any code. If a company uses and redistributes GPL code someone else wrote, they could be sued by their customers to enforce the GPL, but SF conservancy argues that's a good thing. IANAL
nfriedly 5y ago
> I can see many lawyers pushing to completely ban copyleft licensed software use. That's obviously not the best possible outcome, but I feel it would be preferable to corporations flagrantly violating the license and getting away with it. They should really understand that it's a trade-off: use GPL software and release the source (thus avoiding this liability), or pay the cost of developing proprietary software. IMHO they already are liable here, some of them just haven't realized it yet.
dvdkon 5y ago
If our choices are "GPL enforcement remains basically nonexistent, making the licence useless" and "GPL is enforced, but doesn't see much corporate use", I'll take the second option. If I wanted adoption above all, permissive licences exist. The GPL is a "viral" licence and should be treated as such.

pabs3 5y ago

The copyright holders can already sue for GPL violations (and some do), so if corporate lawyers are fine with the GPL now and companies are complying now, they should be fine after the case is won. The problem will come for companies like Vizio who aren't complying.

zucker42 5y ago

In the argument of the SF conservancy, the contract is between a distributor of the software and someone receiving the software. If a company only writes the GPL software in question, they wouldn't be liable to their customers in the same way as in this article because they aren't on the receiving end of any code. If a company uses and redistributes GPL code someone else wrote, they could be sued by their customers to enforce the GPL, but SF conservancy argues that's a good thing. IANAL

nfriedly 5y ago

> I can see many lawyers pushing to completely ban copyleft licensed software use. That's obviously not the best possible outcome, but I feel it would be preferable to corporations flagrantly violating the license and getting away with it. They should really understand that it's a trade-off: use GPL software and release the source (thus avoiding this liability), or pay the cost of developing proprietary software. IMHO they already are liable here, some of them just haven't realized it yet.

dvdkon 5y ago

If our choices are "GPL enforcement remains basically nonexistent, making the licence useless" and "GPL is enforced, but doesn't see much corporate use", I'll take the second option. If I wanted adoption above all, permissive licences exist. The GPL is a "viral" licence and should be treated as such.