20 ms·

Why the AGPL is often unenforceable (2015)

62 points by jj999 3y ago

habitue 3y ago
Interested in a legal take based on case law. Looks like this is a reasoning from first principles from the underlying law, but it doesn't consider what courts have said on the matter
- jsiepkes 3y ago
  This is why I don't like GPL-like licenses; Only a court ruling will give you a degree of certainty. Now sure, you could argue that's the case for all OSS. But the GPL family of licenses leave a lot of legal wiggle room. Unlike for example file based licenses such as the MPL or CDDL. The LGPL is also an interesting one. People tend to think it's less strict then the GPL. However it has a clause which says you need to provide the means for someone to change the LGPL library and reintegrate those changes in your work. How does that even work for a statically linked binary?
  - f1shy 3y ago
    Is not that the case for basically anything? At the end, if there is a conflict, you have to go to court, and then the better lawyer will win.
  - __david__ 3y ago
    You also ship a .o file that includes everything _except_ the LGPL-ed library. The user can re-link against a newer .a to get a new linked executable. I'm not sure I've ever actually seen it done though… And that's just C—what does it mean for something like Go or Rust where it's not really easy to get partially linked program? No idea :-).
  - dontlaugh 3y ago
    In practice, you can’t statically link. Some LGPL libraries explicitly include a static linking exception.
    - okanat 3y ago
      You can. At least with C and C++. It is just tedious. You can provide the object files of the closed program or reduce it down to single object file.
  - phh 3y ago
    > The LGPL is also an interesting one. People tend to think it's less strict then the GPL. However it has a clause which says you need to provide the means for someone to change the LGPL library and reintegrate those changes in your work. Isn't that true only for LGPLv3? This requirement also happen on GPLv3.
  - dkersten 3y ago
    > How does that even work for a statically linked binary? I learned it this way: LGPL is basically GPL unless you dynamically link. Sure, there are workarounds to make it compatible with static linking, as others have mentioned, but unless you’re willing to jump through those hoops, LGPL restricts you to only dynamic linking.
    - deleted 3y ago
      [deleted]
  - braza 3y ago
    At least in some places in Europe, at the time that you have some dispute like this you will need to prepare and disclose provisions for your shareholders and place that in your balance sheet as a potential liability. I've worked in a company that entered in a dispute with Microsoft regarding licensing of SQL Server, and since the legal dispute was more than USD 2 million our CFO was obligated to place that as a balance sheet loss under legal provisions. Eventually we won the case and the "money" went back to the cash flow.
  - deleted 3y ago
    [deleted]
- jillesvangurp 3y ago
  I think that is the point. This license hasn't been battle tested in a court room that much. And until it is, we can't really know what is and isn't enforceable. People supposing it should be interpreted this way or that way, mostly aren't lawyers. So, that means there's a good chance they are wrong. But more importantly, how important is it for you to be right/wrong about your own interpretation? Of course a bit academic for most developers. But for most companies that don't like uncertainty around the topic of who actually owns their core intellectual property, this is a good reason to blanket ban the use of anything AGPL licensed. Personally, I avoid the anything AGPL licensed for a different reason. I write software for a living and with the goal to profit from that directly or indirectly. People using AGPL seem to be signalling that they don't appreciate other people using their software for profit. So, I respect that and ignore their work. Plenty of more liberally licensed software out there where the developers seem to actively encourage people to use their software. I like feeling welcome as a user. And I don't feel welcome using AGPL software. So, I don't.
  - madeofpalk 3y ago
    > This license hasn't been battle tested in a court room that much. This is kind of considered a feature, isn't it? Every time a disagreement is taken to court, it's a failure of all sides. Courts are expensive and a time waste, so we create contracts that avoid all of that to try to get parties to work together without the courts. AGPL has been enforceable, in general, because of all the case law around general copyright law.
    - jillesvangurp 3y ago
      Depends if you want a license you can rely on on both sides with zero ambiguity on what is and isn't enforcable, having a few court cases confirm this is nice. The lack of court cases has a perfectly reasonable explanation: no serious company with a legal department would bother to touch anything licensed this way. The companies most likely to be able to represent themselves in a court are also the most likely to have a policy of just blanket banning anything with this license. As a means of alienating end users, the AGPL is an enormous success. As a means of actually enforcing what it says, it's largely unproven.
_flux 3y ago
I thought mere modification of a copyrighted work would be a right granted by copyright—or at least the act of deploying it (by virtue of making copies of that application)? So to make such copies you would be need a license to do it and if you choose not to agree with the license, regular copyright permissions apply. IANAL etc of course :). E.g. https://www.copyright.gov/help/faq/faq-digital.html https://www.copyright.gov/help/faq/faq-digital.html suggest you can only make "archival" copies of applications. If you don't modify the application, AGPL is not very interesting; the public usually already has access to the source code.
- fsckboy 3y ago
  >modification of a copyrighted work would be a right granted by copyright no, it's a right granted by the license, if you have one. The copyright grants rights to the author, not anybody else.
  - Karellen 3y ago
    Really? Do I need a license to cross out words, and write in some of my own, in books that I've bought?
    - fsckboy 3y ago
      yes! you're getting directly at what I'm trying to explain. you need a license to have a copy in the first place, and you need a copy to cross out words, so yes, you need a license to cross out words. You don't need a special extra license, but you need a licensed copy or you are in violation of the copyright. So this is the "trick" in copyright law that the GPL uses. It's granting you the have-your-one-copy-license if you agree to the terms. After that point, violations on your part do not void the "terms of the license", they void your license to have a copy in the first place. the only person who does not need a license to have a copy is the original author, so if you buy a copy of a book you wrote, you (alone) don't own a licensed copy, but you do own the copyright on the copyrighted copy that you bought.
      - 3y ago
hugoroy 3y ago
Random post on the internet by what seems a a nonlawyer. Be careful. "The AGPL, like the GPL, is a copyright licence, not a contract" actual authoriative legal source needed. For what it's worth, this is plain wrong under French law (and I'm a lawyer and there is actual case law in France to support the view that GPL is a contract).
- bryanrasmussen 3y ago
  It looks like their main point is this one > But this means that it is impossible for the GPL to restrict any action which you would have been legally authorized to do even if the software had not been licenced under any licence. how would this statement be affected by French Law? This is an actual interested question and not HN know-it-all being aggressive and trying to claim you're wrong (figured I should say it)
  - hugoroy 3y ago
    The analysis is wrong even if we accept the flawed premise presented (whether in US or French law). Section 13 of the AGPL which is the one the author says is ineffective starts: "Notwithstanding any other provision of this License, if you modify the Program, your modified version must ..." The obligation starts from "modification" of the software, and modification of software is an act protected under copyright law. Hence you need an authorisation for it (without prejudice to fair use and copyright exceptions of course).
    - bluesign 3y ago
      not a lawyer, but if there is no requirement without modification, lets say I developed X, someone made a version Y, they gave it to you. ( as you are the only user, they are only required to share modifications with you ), then you run this without modifications as a network service. how is it ensured users of you have access to the source?
      - hugoroy 3y ago
        Here's how it goes: You develop X and distribute it to B. B modifies X (becomes X.1) and because B has been well advised by lawyers, B knows that modification of software is an act restricted under copyright law, and so B went to go read the LICENSE file and found Section 13 of AGPL. As a result because he/she is diligent, B ensures that the source code of X.1 can be accessed by putting a link to a server in X.1's user interface. See Section 13 of AGPL: B's "modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge ..." B distributes X.1 to C C runs X.1 which is a version that already offers all users a way to get the source code.
notpushkin 3y ago
Not a lawyer, but the reasoning seems flawed to me. Under AGPL, you are given right to use a piece of software, but only if you provide source code to anybody connecting to your server. If you fail to comply, your right to use software is terminated. How whether you distribute parts of that software to end users or not is relevant here?
- enriquto 3y ago
  > you are given right to use a piece of software, but only if you provide source code to anybody connecting to your server This is a convoluted way to put it! You use the word "use", not to mean the actual users of the program, but a third party that distributes/installs it. It is clearer to see the AGPL as giving rights to the users, not imposing obligations on the distributors. Thus, if you use an AGPL program, you are given the right to see, change and redistribute its source code (regardless of whether the program is running on your own computer or on a third-party server). Copyleft is not meant to restrict, but to grant freedoms to the end users of the software.
  - pessimizer 3y ago
    > Copyleft is not meant to restrict, but to grant freedoms to the end users of the software. That's the goal, but materially it is restrictive licensing, meant to impose obligations on the distributors, in order to grant freedoms to the end users of the software. I think that pretending copyleft isn't restrictive is misleading, and it ultimately weakens it. It's as important to respect the GPLs as it is to respect any other restrictive, "proprietary" license. One has no more right to violate the GPL than they have to violate Microsoft licensing.
- pavon 3y ago
  That is the fundamental difference between a pure copyright license and a contract (eg EULA). A license can only grant you permission to do things you weren't able to do otherwise, while a contract can prohibit you from doing things you otherwise would be allowed to do in exchange for granting other permissions. Nothing in copyright law restricts the use of a product. If you legally purchase a book or movie, your are free to watch it whenever you want however often you want. Copyright only restricts copying, creating derivative works, redistributing (and public performance for certain types of work), not use. So to restrict use of software, you need a contract. An explicit goal of the FSF in writing all their licenses is that they do not restrict your existing rights, they only grant new (sometimes narrow) permissions. The courts seem less interested in this distinction, could potentially interpret it as a contract, but even if treated as a contract, it was still written to not restrict your existing rights.
braza 3y ago
The great point that the OP misses here is that in most of the time AGPL is not used to be enforceable, but is a mechanism to make sure that an user that is keeping the code closed is non-compliant. Any due diligence for a M&A or tech legal screening that finds a closed piece of code with AGPL will raise a red flag. In some of the cases that I saw the assessment was that the code base was non-compliant and this applied a huge discount.
- NotYourLawyer 3y ago
  If it’s unenforceable, why would anyone care?
fsckboy 3y ago
a license is a contract. from legalzoom: When you own a copyrighted work, such as a book, article, play, or song, you have the right to decide if and how anyone else can use it. Giving permission to do so is called granting a license, which is a written contract giving the user authorization to use the work, usually in exchange for payment. A copyright license agreement outlines the entire licensing contract made between the copyright owner and the licensee. also in some other comments here I think the wording is a little sloppy. The GPL license (like all licenses) grants you the right to have the copy of the work you have only if you accept the license terms. So if you don't accept the terms of the GPL, then you must delete the copy you have, before any of the other stuff about compilation, modifications, sharing, etc. even kicks in. If you ever violate the terms of the license, that erases your rights to everything that came before and you are operating without a license.
- Defletter 3y ago
  > This portion of the site (its articles) is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in law. Since there's no citations to statutes or case law which state that copyright licences are contracts, this source, which you didn't link either, is not reliable.
- frognumber 3y ago
  Legalzoom is wrong (or to be more precise, probably intentionally oversimplifying to the point of being irrelevant here). A more nuanced take: https://lwn.net/Articles/747563/ https://lwn.net/Articles/747563/ This is a discussion between three lawyers specializing in the field, from three jurisdictions (US and UK, both of which are common law, as well as parts of the EU which are under statutory law).
  - xcdzvyn 3y ago
    > In the US, at least for the frequently-used free software licenses, acceptance is by conduct. The license is irrevocable once even partial performance has occurred. Third-party rights depend on the wording. Orders for specific performance are rarely granted but are theoretically possible. You won't get legal costs awarded, and exclusion of liability is likely to be valid. > In the UK, where many free-software licenses are probably just bare licenses, no acceptance is required for a defense against an infringement claim. The license is revocable by the licensor until the licensee has relied on it. No third-party rights exist. Orders for specific performance are not available. The award of legal costs is discretionary but may happen, and liability exclusion is generally enforceable. > In the EU acceptance can be by any means, including conduct. The license is probably irrevocable. Third-party rights do exist, and specific performance is available. Nothing was said about legal costs, and liability exclusion is possible but is subject to the the requirements of proportionality and consumer protection. I don't think it's unreasonable to boil this down to a "yes". Particularly given (1) LegalZoom is presumably American, where, in isolation, the answer is likely "yes"; (2) if licenses are considered contracts in any region in which you do business, you should probably consider them contracts, just to be safe.
frognumber 3y ago
The article is ambiguous, and both interpretations are legally incorrect. 1) The AGPL is designed to binding when making a joint work -- e.g. two pieces of code where the logic is intimately coupled. If I make a front-end and a back-end of an application, the AGPL holds. That's a derivative work. 2) The AGPL is not designed to hold when merely using something over established protocols. If I write a generic web server under the AGPL, clients under any license can (and should be able to) connect. That's not a derivative work. That's two independent works. The test here is not -- as I've seen corporate legal departs indicated -- a question of how things are linked (e.g. web protocols, dynamic, or static binding), but how closely the logic is coupled. If the two pieces are integral to each other, it's a modified work. If I can swap one out (e.g. a SQL server working over established protocols), it's mere aggregation. Now, if I'm running a tool under the AGPL, the process of installing it triggered the AGPL at some point: - If you can access it over any protocol, either I (or someone else) is probably required to give you the source code to any modifications. - If you can't access it, I can have secret modifications. That's by design. Where things get complex is what it means for you to have access. Consider: 1) I run a modified AGPL algorithm on my computer to make a picture of a frog for my own use (clearly okay) 2) ... and I distribute the picture 3) ... at your request, by a contract we signed in person 4) ... at your request, manually, based on a web form you filled out 5) ... same as above, but automatically, in daily batches 6) ... instantly (you make an AJAX call to http://myserver/make_image/prompt=frog http://myserver/make_image/prompt=frog). #6 is clearly infringing if I don't provide access to my modifications. Where does interacting with the work over a network begin? That's untested waters.
andrewaylett 3y ago
It's not all that common, but I really like it when AGPL software allows users to download its own sources over the network. In the same way that I never need to worry about GPL requirements to distribute source if I never give anyone a binary without including the source used to build it, I would never need to worry about AGPL source requirements if anyone using AGPL software I have deployed can retrieve the source. As an extra bonus, anyone trying to circumvent the AGPL by disabling this feature has obviously modified the software.
- eru 3y ago
  > As an extra bonus, anyone trying to circumvent the AGPL by disabling this feature has obviously modified the software. Not necessarily, since you could disable it via a proxy or so?
dathinab 3y ago
> One does not require permission from the copyright holder merely to use software one already possesses, so long as one does not distribute it. This seems right but also wrong. I mean it would mean that I have the right to own and use illegal movie copies, as long as I don't further distribute them. Which AFIK isn't the case.
- Karellen 3y ago
  Do you think that someone should receive a harsher punishment the more times they've watched/read/heard a copy illegally of a work? Or receive less of a punishment if they make a copy (or a hundred copies) illegally but never watch it? Whether or not it makes sense to you, under current copyright law, it is the act of making copies which is restricted and regulated. If you make a copy illegally, that's what you'll be punished for. If you receive a copy of a work, do you know if the copy was made by someone authorised to do so? If you reasonably believe that the copy was made legitimately, you will very likely not be held accountable for owning and using that copy. No matter the legality of its provenance. It is the person who made the copy who will be (or should be) accountable.
j1elo 3y ago
The GPL family of licenses were written under legal counselling of actual lawyers. They are, however, first and foremost an US product, written to be enforced under US laws. It is no surprise that other countries have different legal systems under which the terms of a software license can be difficult to apply. (Edit: This comment puts it very well: https://news.ycombinator.com/item?id=37291970 https://news.ycombinator.com/item?id=37291970) For a license similar to AGPL but written with the whole European Union legal frameworks in mind, I'd suggest having a look at The European Union Public Licence (EUPL): * https://en.wikipedia.org/wiki/European_Union_Public_Licence https://en.wikipedia.org/wiki/European_Union_Public_Licence * https://joinup.ec.europa.eu/collection/eupl/eupl-guidelines-faq-infographics https://joinup.ec.europa.eu/collection/eupl/eupl-guidelines-... I am european, so I was considering using the EUPL for a new open source project that I'm planning. I'd love to get some comments from HN readers, regarding that choice.
- teddyh 3y ago
  The GPLv3 and associated v3 licenses were all carefully written to be applicable internationally. Using a Europe-specific license is as bad as using a U.S.-specific GPLv2.
- elkos 3y ago
  last time i checked several courts in EU tried and enforced the GPLv3 but I might be wrong
- patemmschmitz 3y ago
  It is a constant policy, from all "FSF-followers-free-software-activists" to try to discourage, on all public discussion forums, the use of the EUPL that is a copyleft license "other than GPL/AGPL". However, the referenced EUPL guidelines explain in full detail why using it is not "bad" or "wrong". The EUPL licence is 3 times shorter than the GPLv3, clearer, multilingual, interoperable and compatible with the GPLs/AGPL. The FSF "strong copyleft theory" that linking propagates the GPL license was not (and will never be) validated by EU courts.
dathinab 3y ago
The interesting part about AGPL is that I have seen many cases where people didn't choose it because they believe they can enforce it. Often the thinking was more on the line of maybe it's legally not fully sound, but it's sound enough to not make us lose sales, i.e.: - a dishonest company could just secretly use it and we wouldn't know, so we don't care that much about that aspect - a humongous company could be in a position where they think they can lawyer themself out of their AGPL usage in the US, but such a company has a lot of other ways too and isn't our target audience anytime soon, so if worse comes to worse we just offer them a cheap enough (no support included) license so that they prefer that over a court case - most companies which do prefer going to court over buying a license probably also wouldn't use our software if buying a license would be the only way, so not really lost sells
2Gkashmiri 3y ago
believe it or not, if your AGPL software is like a Database or some non-user facing or something that works over an api, a closed source software developer can use your AGPL licensed software in building his/her closed source software as long as the developer does not make any modifications to the AGPL software and informs the user about agpl software in the license file. AGPL software DOES NOT prevent use of the software in a proprietary software unless the software itself is changed and even then, the modifications is to be open sourced. There isn't the "virality" of AGPL like people claim. That is with SSPL
- merb 3y ago
  Well some companies believe something different like itext, they even mention something like > When using iText Core/Community under AGPL, you must prominently mention iText and include the iText copyright and AGPL license in output file metadata, and also retain the producer line in every PDF that is created or manipulated using iText. On https://itextpdf.com/how-buy/AGPLv3-license https://itextpdf.com/how-buy/AGPLv3-license However „ 7. Additional Terms“ States that I can just ignore any additional terms. It’s really a clusterfuck. I’m not even sure if it would be legal to create a http server that provides functionality of itext. On the other hand mongodb was agpl for a long time and nobody cared.
  - 2Gkashmiri 3y ago
    >It’s a legal violation to use iText Core/Community and our open source add-ons in a non-AGPL environment. this is not standard AGPL licensing terms. they are just making stuff up
kazinator 3y ago
The author is grossly mistaken here. The idea that the AGPL is unenforceable is dangerous advice that could backfire on someone. Let me offer a different viewpoint. The AGPL is a non-free license which uses the same legal principles as shrink-wrap EULA licenses. If the AGPL is not enforceable, then the majority of (other) EULAs are also not enforceable. Quick, someone tell Microsoft, Adobe, Apple, ... do they and their legal departments and lawyers know? The restrictions/requirements inherent in the AGPL are use restrictions. If you run the program such that people connect to it, you are not redistributing it and so copyright does not apply. That use of the software is governed by requirements. No software with use restrictions can reasonably be called free. The legal doctrine at play is exactly like that in shrink-wrapped EULAs (note the "U" there): you are allowed to have a copy of the program (which lands under copyright) if you conform to certain behaviors. In the case of a typical EULA: that you won't reverse engineer the program, or copy it, or crack the license to give yourself unlimited use, etc. In the case of the AGPL, that you won't use it in a way that people can access it, without giving them the code with all your mods. If you don't comply with the rules, then the offer lapses: the program is not licensed to you. You are not properly engaged in the contract, and so the copyright holder does not give you permissions to have and use a copy of that program, or to use it in that way. That's how I think it works. Software licenses which restrict use do not use only copyright. They are contracts which make the granting of the copy conditional on contracted behavior. Arbitrary conditions can be linked to the copyrighted work. If some court does find the AGPL or any other EULA unenforceable, it will almost certainly be due to some much more subtle argument than "oh, it's a copyright license that's only concerned with redistribution distribution, so whatever it says about use can just be ignored".
aaron695 3y ago
[dead]

62 points by jj999 3y ago

Interested in a legal take based on case law. Looks like this is a reasoning from first principles from the underlying law, but it doesn't consider what courts have said on the matter

jsiepkes 3y ago
This is why I don't like GPL-like licenses; Only a court ruling will give you a degree of certainty. Now sure, you could argue that's the case for all OSS. But the GPL family of licenses leave a lot of legal wiggle room. Unlike for example file based licenses such as the MPL or CDDL. The LGPL is also an interesting one. People tend to think it's less strict then the GPL. However it has a clause which says you need to provide the means for someone to change the LGPL library and reintegrate those changes in your work. How does that even work for a statically linked binary?
- f1shy 3y ago
  Is not that the case for basically anything? At the end, if there is a conflict, you have to go to court, and then the better lawyer will win.
- __david__ 3y ago
  You also ship a .o file that includes everything _except_ the LGPL-ed library. The user can re-link against a newer .a to get a new linked executable. I'm not sure I've ever actually seen it done though… And that's just C—what does it mean for something like Go or Rust where it's not really easy to get partially linked program? No idea :-).
- dontlaugh 3y ago
  In practice, you can’t statically link. Some LGPL libraries explicitly include a static linking exception.
  - okanat 3y ago
    You can. At least with C and C++. It is just tedious. You can provide the object files of the closed program or reduce it down to single object file.
- phh 3y ago
  > The LGPL is also an interesting one. People tend to think it's less strict then the GPL. However it has a clause which says you need to provide the means for someone to change the LGPL library and reintegrate those changes in your work. Isn't that true only for LGPLv3? This requirement also happen on GPLv3.
- dkersten 3y ago
  > How does that even work for a statically linked binary? I learned it this way: LGPL is basically GPL unless you dynamically link. Sure, there are workarounds to make it compatible with static linking, as others have mentioned, but unless you’re willing to jump through those hoops, LGPL restricts you to only dynamic linking.
  - deleted 3y ago
    [deleted]
- braza 3y ago
  At least in some places in Europe, at the time that you have some dispute like this you will need to prepare and disclose provisions for your shareholders and place that in your balance sheet as a potential liability. I've worked in a company that entered in a dispute with Microsoft regarding licensing of SQL Server, and since the legal dispute was more than USD 2 million our CFO was obligated to place that as a balance sheet loss under legal provisions. Eventually we won the case and the "money" went back to the cash flow.
- deleted 3y ago
  [deleted]
jillesvangurp 3y ago
I think that is the point. This license hasn't been battle tested in a court room that much. And until it is, we can't really know what is and isn't enforceable. People supposing it should be interpreted this way or that way, mostly aren't lawyers. So, that means there's a good chance they are wrong. But more importantly, how important is it for you to be right/wrong about your own interpretation? Of course a bit academic for most developers. But for most companies that don't like uncertainty around the topic of who actually owns their core intellectual property, this is a good reason to blanket ban the use of anything AGPL licensed. Personally, I avoid the anything AGPL licensed for a different reason. I write software for a living and with the goal to profit from that directly or indirectly. People using AGPL seem to be signalling that they don't appreciate other people using their software for profit. So, I respect that and ignore their work. Plenty of more liberally licensed software out there where the developers seem to actively encourage people to use their software. I like feeling welcome as a user. And I don't feel welcome using AGPL software. So, I don't.
- madeofpalk 3y ago
  > This license hasn't been battle tested in a court room that much. This is kind of considered a feature, isn't it? Every time a disagreement is taken to court, it's a failure of all sides. Courts are expensive and a time waste, so we create contracts that avoid all of that to try to get parties to work together without the courts. AGPL has been enforceable, in general, because of all the case law around general copyright law.
  - jillesvangurp 3y ago
    Depends if you want a license you can rely on on both sides with zero ambiguity on what is and isn't enforcable, having a few court cases confirm this is nice. The lack of court cases has a perfectly reasonable explanation: no serious company with a legal department would bother to touch anything licensed this way. The companies most likely to be able to represent themselves in a court are also the most likely to have a policy of just blanket banning anything with this license. As a means of alienating end users, the AGPL is an enormous success. As a means of actually enforcing what it says, it's largely unproven.

_flux 3y ago

I thought mere modification of a copyrighted work would be a right granted by copyright—or at least the act of deploying it (by virtue of making copies of that application)? So to make such copies you would be need a license to do it and if you choose not to agree with the license, regular copyright permissions apply. IANAL etc of course :). E.g. https://www.copyright.gov/help/faq/faq-digital.html https://www.copyright.gov/help/faq/faq-digital.html suggest you can only make "archival" copies of applications. If you don't modify the application, AGPL is not very interesting; the public usually already has access to the source code.

fsckboy 3y ago
>modification of a copyrighted work would be a right granted by copyright no, it's a right granted by the license, if you have one. The copyright grants rights to the author, not anybody else.
- Karellen 3y ago
  Really? Do I need a license to cross out words, and write in some of my own, in books that I've bought?
  - fsckboy 3y ago
    yes! you're getting directly at what I'm trying to explain. you need a license to have a copy in the first place, and you need a copy to cross out words, so yes, you need a license to cross out words. You don't need a special extra license, but you need a licensed copy or you are in violation of the copyright. So this is the "trick" in copyright law that the GPL uses. It's granting you the have-your-one-copy-license if you agree to the terms. After that point, violations on your part do not void the "terms of the license", they void your license to have a copy in the first place. the only person who does not need a license to have a copy is the original author, so if you buy a copy of a book you wrote, you (alone) don't own a licensed copy, but you do own the copyright on the copyrighted copy that you bought.
    - 3y ago

hugoroy 3y ago

Random post on the internet by what seems a a nonlawyer. Be careful. "The AGPL, like the GPL, is a copyright licence, not a contract" actual authoriative legal source needed. For what it's worth, this is plain wrong under French law (and I'm a lawyer and there is actual case law in France to support the view that GPL is a contract).

bryanrasmussen 3y ago
It looks like their main point is this one > But this means that it is impossible for the GPL to restrict any action which you would have been legally authorized to do even if the software had not been licenced under any licence. how would this statement be affected by French Law? This is an actual interested question and not HN know-it-all being aggressive and trying to claim you're wrong (figured I should say it)
- hugoroy 3y ago
  The analysis is wrong even if we accept the flawed premise presented (whether in US or French law). Section 13 of the AGPL which is the one the author says is ineffective starts: "Notwithstanding any other provision of this License, if you modify the Program, your modified version must ..." The obligation starts from "modification" of the software, and modification of software is an act protected under copyright law. Hence you need an authorisation for it (without prejudice to fair use and copyright exceptions of course).
  - bluesign 3y ago
    not a lawyer, but if there is no requirement without modification, lets say I developed X, someone made a version Y, they gave it to you. ( as you are the only user, they are only required to share modifications with you ), then you run this without modifications as a network service. how is it ensured users of you have access to the source?
    - hugoroy 3y ago
      Here's how it goes: You develop X and distribute it to B. B modifies X (becomes X.1) and because B has been well advised by lawyers, B knows that modification of software is an act restricted under copyright law, and so B went to go read the LICENSE file and found Section 13 of AGPL. As a result because he/she is diligent, B ensures that the source code of X.1 can be accessed by putting a link to a server in X.1's user interface. See Section 13 of AGPL: B's "modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge ..." B distributes X.1 to C C runs X.1 which is a version that already offers all users a way to get the source code.

notpushkin 3y ago

Not a lawyer, but the reasoning seems flawed to me. Under AGPL, you are given right to use a piece of software, but only if you provide source code to anybody connecting to your server. If you fail to comply, your right to use software is terminated. How whether you distribute parts of that software to end users or not is relevant here?

enriquto 3y ago
> you are given right to use a piece of software, but only if you provide source code to anybody connecting to your server This is a convoluted way to put it! You use the word "use", not to mean the actual users of the program, but a third party that distributes/installs it. It is clearer to see the AGPL as giving rights to the users, not imposing obligations on the distributors. Thus, if you use an AGPL program, you are given the right to see, change and redistribute its source code (regardless of whether the program is running on your own computer or on a third-party server). Copyleft is not meant to restrict, but to grant freedoms to the end users of the software.
- pessimizer 3y ago
  > Copyleft is not meant to restrict, but to grant freedoms to the end users of the software. That's the goal, but materially it is restrictive licensing, meant to impose obligations on the distributors, in order to grant freedoms to the end users of the software. I think that pretending copyleft isn't restrictive is misleading, and it ultimately weakens it. It's as important to respect the GPLs as it is to respect any other restrictive, "proprietary" license. One has no more right to violate the GPL than they have to violate Microsoft licensing.
pavon 3y ago
That is the fundamental difference between a pure copyright license and a contract (eg EULA). A license can only grant you permission to do things you weren't able to do otherwise, while a contract can prohibit you from doing things you otherwise would be allowed to do in exchange for granting other permissions. Nothing in copyright law restricts the use of a product. If you legally purchase a book or movie, your are free to watch it whenever you want however often you want. Copyright only restricts copying, creating derivative works, redistributing (and public performance for certain types of work), not use. So to restrict use of software, you need a contract. An explicit goal of the FSF in writing all their licenses is that they do not restrict your existing rights, they only grant new (sometimes narrow) permissions. The courts seem less interested in this distinction, could potentially interpret it as a contract, but even if treated as a contract, it was still written to not restrict your existing rights.

braza 3y ago

The great point that the OP misses here is that in most of the time AGPL is not used to be enforceable, but is a mechanism to make sure that an user that is keeping the code closed is non-compliant. Any due diligence for a M&A or tech legal screening that finds a closed piece of code with AGPL will raise a red flag. In some of the cases that I saw the assessment was that the code base was non-compliant and this applied a huge discount.

NotYourLawyer 3y ago
If it’s unenforceable, why would anyone care?

fsckboy 3y ago

a license is a contract. from legalzoom: When you own a copyrighted work, such as a book, article, play, or song, you have the right to decide if and how anyone else can use it. Giving permission to do so is called granting a license, which is a written contract giving the user authorization to use the work, usually in exchange for payment. A copyright license agreement outlines the entire licensing contract made between the copyright owner and the licensee. also in some other comments here I think the wording is a little sloppy. The GPL license (like all licenses) grants you the right to have the copy of the work you have only if you accept the license terms. So if you don't accept the terms of the GPL, then you must delete the copy you have, before any of the other stuff about compilation, modifications, sharing, etc. even kicks in. If you ever violate the terms of the license, that erases your rights to everything that came before and you are operating without a license.

Defletter 3y ago
> This portion of the site (its articles) is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in law. Since there's no citations to statutes or case law which state that copyright licences are contracts, this source, which you didn't link either, is not reliable.
frognumber 3y ago
Legalzoom is wrong (or to be more precise, probably intentionally oversimplifying to the point of being irrelevant here). A more nuanced take: https://lwn.net/Articles/747563/ https://lwn.net/Articles/747563/ This is a discussion between three lawyers specializing in the field, from three jurisdictions (US and UK, both of which are common law, as well as parts of the EU which are under statutory law).
- xcdzvyn 3y ago
  > In the US, at least for the frequently-used free software licenses, acceptance is by conduct. The license is irrevocable once even partial performance has occurred. Third-party rights depend on the wording. Orders for specific performance are rarely granted but are theoretically possible. You won't get legal costs awarded, and exclusion of liability is likely to be valid. > In the UK, where many free-software licenses are probably just bare licenses, no acceptance is required for a defense against an infringement claim. The license is revocable by the licensor until the licensee has relied on it. No third-party rights exist. Orders for specific performance are not available. The award of legal costs is discretionary but may happen, and liability exclusion is generally enforceable. > In the EU acceptance can be by any means, including conduct. The license is probably irrevocable. Third-party rights do exist, and specific performance is available. Nothing was said about legal costs, and liability exclusion is possible but is subject to the the requirements of proportionality and consumer protection. I don't think it's unreasonable to boil this down to a "yes". Particularly given (1) LegalZoom is presumably American, where, in isolation, the answer is likely "yes"; (2) if licenses are considered contracts in any region in which you do business, you should probably consider them contracts, just to be safe.

frognumber 3y ago

The article is ambiguous, and both interpretations are legally incorrect. 1) The AGPL is designed to binding when making a joint work -- e.g. two pieces of code where the logic is intimately coupled. If I make a front-end and a back-end of an application, the AGPL holds. That's a derivative work. 2) The AGPL is not designed to hold when merely using something over established protocols. If I write a generic web server under the AGPL, clients under any license can (and should be able to) connect. That's not a derivative work. That's two independent works. The test here is not -- as I've seen corporate legal departs indicated -- a question of how things are linked (e.g. web protocols, dynamic, or static binding), but how closely the logic is coupled. If the two pieces are integral to each other, it's a modified work. If I can swap one out (e.g. a SQL server working over established protocols), it's mere aggregation. Now, if I'm running a tool under the AGPL, the process of installing it triggered the AGPL at some point: - If you can access it over any protocol, either I (or someone else) is probably required to give you the source code to any modifications. - If you can't access it, I can have secret modifications. That's by design. Where things get complex is what it means for you to have access. Consider: 1) I run a modified AGPL algorithm on my computer to make a picture of a frog for my own use (clearly okay) 2) ... and I distribute the picture 3) ... at your request, by a contract we signed in person 4) ... at your request, manually, based on a web form you filled out 5) ... same as above, but automatically, in daily batches 6) ... instantly (you make an AJAX call to http://myserver/make_image/prompt=frog http://myserver/make_image/prompt=frog). #6 is clearly infringing if I don't provide access to my modifications. Where does interacting with the work over a network begin? That's untested waters.

andrewaylett 3y ago

It's not all that common, but I really like it when AGPL software allows users to download its own sources over the network. In the same way that I never need to worry about GPL requirements to distribute source if I never give anyone a binary without including the source used to build it, I would never need to worry about AGPL source requirements if anyone using AGPL software I have deployed can retrieve the source. As an extra bonus, anyone trying to circumvent the AGPL by disabling this feature has obviously modified the software.

eru 3y ago
> As an extra bonus, anyone trying to circumvent the AGPL by disabling this feature has obviously modified the software. Not necessarily, since you could disable it via a proxy or so?

dathinab 3y ago

> One does not require permission from the copyright holder merely to use software one already possesses, so long as one does not distribute it. This seems right but also wrong. I mean it would mean that I have the right to own and use illegal movie copies, as long as I don't further distribute them. Which AFIK isn't the case.

Karellen 3y ago
Do you think that someone should receive a harsher punishment the more times they've watched/read/heard a copy illegally of a work? Or receive less of a punishment if they make a copy (or a hundred copies) illegally but never watch it? Whether or not it makes sense to you, under current copyright law, it is the act of making copies which is restricted and regulated. If you make a copy illegally, that's what you'll be punished for. If you receive a copy of a work, do you know if the copy was made by someone authorised to do so? If you reasonably believe that the copy was made legitimately, you will very likely not be held accountable for owning and using that copy. No matter the legality of its provenance. It is the person who made the copy who will be (or should be) accountable.

j1elo 3y ago

The GPL family of licenses were written under legal counselling of actual lawyers. They are, however, first and foremost an US product, written to be enforced under US laws. It is no surprise that other countries have different legal systems under which the terms of a software license can be difficult to apply. (Edit: This comment puts it very well: https://news.ycombinator.com/item?id=37291970 https://news.ycombinator.com/item?id=37291970) For a license similar to AGPL but written with the whole European Union legal frameworks in mind, I'd suggest having a look at The European Union Public Licence (EUPL): * https://en.wikipedia.org/wiki/European_Union_Public_Licence https://en.wikipedia.org/wiki/European_Union_Public_Licence * https://joinup.ec.europa.eu/collection/eupl/eupl-guidelines-faq-infographics https://joinup.ec.europa.eu/collection/eupl/eupl-guidelines-... I am european, so I was considering using the EUPL for a new open source project that I'm planning. I'd love to get some comments from HN readers, regarding that choice.

teddyh 3y ago
The GPLv3 and associated v3 licenses were all carefully written to be applicable internationally. Using a Europe-specific license is as bad as using a U.S.-specific GPLv2.
elkos 3y ago
last time i checked several courts in EU tried and enforced the GPLv3 but I might be wrong
patemmschmitz 3y ago
It is a constant policy, from all "FSF-followers-free-software-activists" to try to discourage, on all public discussion forums, the use of the EUPL that is a copyleft license "other than GPL/AGPL". However, the referenced EUPL guidelines explain in full detail why using it is not "bad" or "wrong". The EUPL licence is 3 times shorter than the GPLv3, clearer, multilingual, interoperable and compatible with the GPLs/AGPL. The FSF "strong copyleft theory" that linking propagates the GPL license was not (and will never be) validated by EU courts.

dathinab 3y ago

The interesting part about AGPL is that I have seen many cases where people didn't choose it because they believe they can enforce it. Often the thinking was more on the line of maybe it's legally not fully sound, but it's sound enough to not make us lose sales, i.e.: - a dishonest company could just secretly use it and we wouldn't know, so we don't care that much about that aspect - a humongous company could be in a position where they think they can lawyer themself out of their AGPL usage in the US, but such a company has a lot of other ways too and isn't our target audience anytime soon, so if worse comes to worse we just offer them a cheap enough (no support included) license so that they prefer that over a court case - most companies which do prefer going to court over buying a license probably also wouldn't use our software if buying a license would be the only way, so not really lost sells

2Gkashmiri 3y ago

believe it or not, if your AGPL software is like a Database or some non-user facing or something that works over an api, a closed source software developer can use your AGPL licensed software in building his/her closed source software as long as the developer does not make any modifications to the AGPL software and informs the user about agpl software in the license file. AGPL software DOES NOT prevent use of the software in a proprietary software unless the software itself is changed and even then, the modifications is to be open sourced. There isn't the "virality" of AGPL like people claim. That is with SSPL

merb 3y ago
Well some companies believe something different like itext, they even mention something like > When using iText Core/Community under AGPL, you must prominently mention iText and include the iText copyright and AGPL license in output file metadata, and also retain the producer line in every PDF that is created or manipulated using iText. On https://itextpdf.com/how-buy/AGPLv3-license https://itextpdf.com/how-buy/AGPLv3-license However „ 7. Additional Terms“ States that I can just ignore any additional terms. It’s really a clusterfuck. I’m not even sure if it would be legal to create a http server that provides functionality of itext. On the other hand mongodb was agpl for a long time and nobody cared.
- 2Gkashmiri 3y ago
  >It’s a legal violation to use iText Core/Community and our open source add-ons in a non-AGPL environment. this is not standard AGPL licensing terms. they are just making stuff up

kazinator 3y ago

The author is grossly mistaken here. The idea that the AGPL is unenforceable is dangerous advice that could backfire on someone. Let me offer a different viewpoint. The AGPL is a non-free license which uses the same legal principles as shrink-wrap EULA licenses. If the AGPL is not enforceable, then the majority of (other) EULAs are also not enforceable. Quick, someone tell Microsoft, Adobe, Apple, ... do they and their legal departments and lawyers know? The restrictions/requirements inherent in the AGPL are use restrictions. If you run the program such that people connect to it, you are not redistributing it and so copyright does not apply. That use of the software is governed by requirements. No software with use restrictions can reasonably be called free. The legal doctrine at play is exactly like that in shrink-wrapped EULAs (note the "U" there): you are allowed to have a copy of the program (which lands under copyright) if you conform to certain behaviors. In the case of a typical EULA: that you won't reverse engineer the program, or copy it, or crack the license to give yourself unlimited use, etc. In the case of the AGPL, that you won't use it in a way that people can access it, without giving them the code with all your mods. If you don't comply with the rules, then the offer lapses: the program is not licensed to you. You are not properly engaged in the contract, and so the copyright holder does not give you permissions to have and use a copy of that program, or to use it in that way. That's how I think it works. Software licenses which restrict use do not use only copyright. They are contracts which make the granting of the copy conditional on contracted behavior. Arbitrary conditions can be linked to the copyrighted work. If some court does find the AGPL or any other EULA unenforceable, it will almost certainly be due to some much more subtle argument than "oh, it's a copyright license that's only concerned with redistribution distribution, so whatever it says about use can just be ignored".

aaron695 3y ago

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