5 ms·

Not a lawyer, but as part of my degree, I had to study the relevant parts of the law for an engineer. The one thing I learned, and the teacher (lawer) was very

by f1shy 3y ago

Not a lawyer, but as part of my degree, I had to study the relevant parts of the law for an engineer. The one thing I learned, and the teacher (lawer) was very clear about: “all is a contract”. Event two people agreeing something with a handshake, if witnesses are present, can be enforced like a written contract. So I’m extremely uncertain of the assertions made there. Also the AGPL was written with lawyers involved in the process…

madeofpalk 3y ago
It's both, right? It's a contract that grants a license.
zarzavat 3y ago
Let’s say I use some code from stack overflow and it turns out to be GPL. Can the owner of the code sue to compel specific performance of the GPL? Probably not, since I can’t be bound be a contract I never even saw, I can be sued for copyright infringement however.
- _ikke_ 3y ago
  No, that's just copyright infringement. You use the license as a contract in order to use the code without infringing on copyright. If you don't adhere to the conditions in the license, the license is revoked, and you're back to copyright infringement, with all the consequences.
- jeroenhd 3y ago
  I'd assume you follow Stackoverflow's license here (creative commons). You do follow the necessary attribution requirement that Stackoverflow demands of you when you copy snippets from the site, don't you? If you're made aware that the code you copied in good faith was not allowed to be granted to you under those terms, you'd probably just lose your right to use the code and nothing more. The person redistributing code under a wrong license is the main culprit, but since they were never allowed to hand out a license, you're screwed because of them. If you choose not to distribute the source code, you must remove it from your product as soon as possible. Of course, this does assume that the code you copied passes the originality threshold. A simple multiplication or a very basic algorithm can be considered too simple to copyright, and GPL would be powerless. It's so possible the use of the copyrighted code can be considered fair use. In the USA, Oracle sued Google over some GPLv2 API definition, but Google was ruled not to have to abide by the terms of the GPL license in that case, because of fair use reasons.
frognumber 3y ago
Under US law, a license is different than a contract. The GPL and friends are very explicitly NOT contracts (in contrast to EULAs, which try to be). Which is super-helpful only if you never intend to leave the US. Most software has users in 200+ jurisdictions, and you can get sued in almost any of them. A court in the Maldives or New Zealand might have a very hard time enforcing a judgment if your legal presence is only in the US, but outstanding judgments can mean: 1) A cap on growth (you can never establish a presence in those jurisdiction until / unless you've resolved you ballooning liabilities) 2) A cap on acquisitions (you can never be sold to or buy an organization with a legal presence there, again, without work) 3) In a worst-case, if the liability is bad, being personally thrown in prison the instant you step off of a plane in a jurisdiction where you have outstanding liabilities. ... and other badness. It, therefore, often make sense to avoid walking along the edge cases of the law.
- hnfong 3y ago
  > The GPL and friends are very explicitly NOT contracts The FSF and friends have very explicitly commented that the GPL is not a contract. (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) There's nothing explicitly saying so in the GPL text, and the section saying that if you don't accept the "license" you will be in violation of copyright law can actually be read both ways (IMHO). If you search around, quite a few jurisdictions have apparently ruled that the GPL can be treated as contract. Even the US, maybe: https://qz.com/981029/a-federal-court-has-ruled-that-an-open-source-license-is-an-enforceable-contract https://qz.com/981029/a-federal-court-has-ruled-that-an-open... (note: take conclusion with a grain of salt). From a common law perspective though, there's really no reason to not consider the GPL a contractual license.. That said, I honestly don't know what's worse -- breach of contract or breach of copyright law. The latter can sometimes carry criminal consequences (and yes, you can be extradited if you are unlucky), while a court ordering performance of contractual obligations can be bad if it's really inconvenient for the business.
  - frognumber 3y ago
    > The FSF and friends have very explicitly commented that the GPL is not a contract. One of the interesting pieces of law is that in a situation like this one, the intent of the drafter is strongly taken into account. The FSF says it's not a contract, publicly and vocally. That will be used in any court, and a court is very unlikely to overturn that. > (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) I can't speak for FSF lawyers in general, but Eben Moglen, who drafted this language, is a super-careful lawyer.
jeroenhd 3y ago
What constitutes as a contract can depend on the legal system at play. Even in western legal systems, the English, French, and German based approaches to law can have different implications when it comes to philosophical questions like "are licenses contracts". As far as I know, GPLv2 is considered a contract under these legal systems, but I'm not lawyer. AGPL and most GPL derivates were certainly made with the help of lawyers, but those lawyers overwhelmingly studied American law, since that's where these licenses came from. They can be used in other countries of course, but they are full of American legalese. Direct translations do exist but they don't alter the words to accomplish the same effect under different systems of law. For example, the vitality of GPLv2 does not apply in Germany: https://cms-lawnow.com/en/ealerts/2022/01/developments-in-open-source-law-in-2021-in-germany-higher-regional-court-decides-on-copyleft-clause https://cms-lawnow.com/en/ealerts/2022/01/developments-in-op... and GPLv3's punishment clause protecting violators for their first incompliance, without further punishment, was denied: https://blog.versioneye.com/2015/09/21/judgment-to-gpl-violation-in-germany/ https://blog.versioneye.com/2015/09/21/judgment-to-gpl-viola... The exact same legal text can have an entirely different meaning when interpreted by a foreign judge in another country. What is a watertight contract in one place, is a breach of a party's freedoms in another. There's a reason the exact text written in treaties is argued over for years, because it's challenging to express what you want to say in a way that's legal for every party's jurisdiction.
- Kinrany 3y ago
  Is it possible to have the contract be explicitly split into two wordings, one for each legal system?
  - eru 3y ago
    That probably depends on the legal systems in question.
  - jkaplowitz 3y ago
    There are more than two legal systems in the world.
bitwize 3y ago
In American law, a contract must have three parts: an offer, acceptance, and consideration. Consideration is something of value given in exchange for the offer in the contract. Because there is nothing paid for a piece of open source software downloaded off the interwebs, there is no consideration. Therefore, open source licenses by themselves constitute what is known as a bare license and may be revoked at any time, for any reason, by the licensor.
- 1MachineElf 3y ago
  Using this logic, how might it play out for Red Hat Enterprise Linux? They are now requiring payment in exchange for access to the source code.
  - bitwize 3y ago
    Red Hat may start requiring CLAs for any source they accept as contribution to any software they maintain. To do otherwise would put them at risk of contributors rescinding their licenses and preventing Red Hat from distributing the software they make money on. CLAs may become standard for all serious open source projects for similar reasons. There's a reason why CLAs, including signed permission from your employer, have been standard for GNU Project contributions since forever ago, even if it weren't tied to this particular issue. It gives the FSF free and clear rights to the code to enforce copyleft without the potential for legal snags regarding ownership and permission to distribute later on down the line.
    - michaelmrose 3y ago
      You still need to show that rescinding the license you granted for your open source code is even a thing. It would basically look to collapse a good portion of the software industry into an endless flurry of lawsuit from any number of contributors and their heirs looking to monetize blackmailing projects by threatening to take back contributions. Why wouldn't the US court system nope out of all that by any means available?
      - 3y ago
weinzierl 3y ago
I'm also an engineer that had to study basic law and what you described matches what I learnt. A contract requires a statement of intent[1], where the bar for this is pretty low, e.g. a handshake. So, many things are considered a contract that a layman wouldn't think of. Of course not literally everything is a contract and the question regarding the GPL here is if this minimum threshold can be considered crossed. [1] I think this is pretty universal across legal systems, but I could be wrong.
pessimizer 3y ago
I'm pretty sure all contracts require an exchange, even if a token one. That's why there's a concept of a token payment. A contract without an exchange (a 1-sided contract) is a covenant. A FOSS license is granting a right of use under a particular set of restrictions, and it is doing it through the means of voluntarily giving up the government-granted right to enforce copyright that the author is entitled to. But the customer is giving nothing. It can't be a contract. The violation of it only represents a loss for one side. A license in exchange for payment is a different story.
- randomNumber7 3y ago
  It can still be considered like an exchange when there is written: "If you use this software, then you agree to comply to the license". Im not sure though to be honest. I might depend on the law system or the mood of the judge.
  - pessimizer 3y ago
    To me, that's like saying, "You can have a glass of water, but you can't have my car" is a contract. "Give me a dollar and you can have this glass of water" is a contract. edit: and to be a tiny bit less glib, a license is where I give up rights I already have, under particular conditions that I dictate. If you choose not to abide by those conditions, the only thing that happens is that I regain the ability to use the rights that I already have. I don't gain any super-copyright powers, or a more powerful copyright.
    - randomNumber7 3y ago
      I know a farmer in a small village and they sell milk and cheese etc. There is no cashier, you take what you want and let the money there. It would still be breaking a contract if you dont...
      - em-bee 3y ago
        because you trade something for something else. defining what the trade is when i download a GPL application is a bit trickier.

by f1shy 3y ago

madeofpalk 3y ago

It's both, right? It's a contract that grants a license.

zarzavat 3y ago

Let’s say I use some code from stack overflow and it turns out to be GPL. Can the owner of the code sue to compel specific performance of the GPL? Probably not, since I can’t be bound be a contract I never even saw, I can be sued for copyright infringement however.

_ikke_ 3y ago
No, that's just copyright infringement. You use the license as a contract in order to use the code without infringing on copyright. If you don't adhere to the conditions in the license, the license is revoked, and you're back to copyright infringement, with all the consequences.
jeroenhd 3y ago
I'd assume you follow Stackoverflow's license here (creative commons). You do follow the necessary attribution requirement that Stackoverflow demands of you when you copy snippets from the site, don't you? If you're made aware that the code you copied in good faith was not allowed to be granted to you under those terms, you'd probably just lose your right to use the code and nothing more. The person redistributing code under a wrong license is the main culprit, but since they were never allowed to hand out a license, you're screwed because of them. If you choose not to distribute the source code, you must remove it from your product as soon as possible. Of course, this does assume that the code you copied passes the originality threshold. A simple multiplication or a very basic algorithm can be considered too simple to copyright, and GPL would be powerless. It's so possible the use of the copyrighted code can be considered fair use. In the USA, Oracle sued Google over some GPLv2 API definition, but Google was ruled not to have to abide by the terms of the GPL license in that case, because of fair use reasons.

frognumber 3y ago

Under US law, a license is different than a contract. The GPL and friends are very explicitly NOT contracts (in contrast to EULAs, which try to be). Which is super-helpful only if you never intend to leave the US. Most software has users in 200+ jurisdictions, and you can get sued in almost any of them. A court in the Maldives or New Zealand might have a very hard time enforcing a judgment if your legal presence is only in the US, but outstanding judgments can mean: 1) A cap on growth (you can never establish a presence in those jurisdiction until / unless you've resolved you ballooning liabilities) 2) A cap on acquisitions (you can never be sold to or buy an organization with a legal presence there, again, without work) 3) In a worst-case, if the liability is bad, being personally thrown in prison the instant you step off of a plane in a jurisdiction where you have outstanding liabilities. ... and other badness. It, therefore, often make sense to avoid walking along the edge cases of the law.

hnfong 3y ago
> The GPL and friends are very explicitly NOT contracts The FSF and friends have very explicitly commented that the GPL is not a contract. (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) There's nothing explicitly saying so in the GPL text, and the section saying that if you don't accept the "license" you will be in violation of copyright law can actually be read both ways (IMHO). If you search around, quite a few jurisdictions have apparently ruled that the GPL can be treated as contract. Even the US, maybe: https://qz.com/981029/a-federal-court-has-ruled-that-an-open-source-license-is-an-enforceable-contract https://qz.com/981029/a-federal-court-has-ruled-that-an-open... (note: take conclusion with a grain of salt). From a common law perspective though, there's really no reason to not consider the GPL a contractual license.. That said, I honestly don't know what's worse -- breach of contract or breach of copyright law. The latter can sometimes carry criminal consequences (and yes, you can be extradited if you are unlucky), while a court ordering performance of contractual obligations can be bad if it's really inconvenient for the business.
- frognumber 3y ago
  > The FSF and friends have very explicitly commented that the GPL is not a contract. One of the interesting pieces of law is that in a situation like this one, the intent of the drafter is strongly taken into account. The FSF says it's not a contract, publicly and vocally. That will be used in any court, and a court is very unlikely to overturn that. > (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) I can't speak for FSF lawyers in general, but Eben Moglen, who drafted this language, is a super-careful lawyer.

jeroenhd 3y ago

What constitutes as a contract can depend on the legal system at play. Even in western legal systems, the English, French, and German based approaches to law can have different implications when it comes to philosophical questions like "are licenses contracts". As far as I know, GPLv2 is considered a contract under these legal systems, but I'm not lawyer. AGPL and most GPL derivates were certainly made with the help of lawyers, but those lawyers overwhelmingly studied American law, since that's where these licenses came from. They can be used in other countries of course, but they are full of American legalese. Direct translations do exist but they don't alter the words to accomplish the same effect under different systems of law. For example, the vitality of GPLv2 does not apply in Germany: https://cms-lawnow.com/en/ealerts/2022/01/developments-in-open-source-law-in-2021-in-germany-higher-regional-court-decides-on-copyleft-clause https://cms-lawnow.com/en/ealerts/2022/01/developments-in-op... and GPLv3's punishment clause protecting violators for their first incompliance, without further punishment, was denied: https://blog.versioneye.com/2015/09/21/judgment-to-gpl-violation-in-germany/ https://blog.versioneye.com/2015/09/21/judgment-to-gpl-viola... The exact same legal text can have an entirely different meaning when interpreted by a foreign judge in another country. What is a watertight contract in one place, is a breach of a party's freedoms in another. There's a reason the exact text written in treaties is argued over for years, because it's challenging to express what you want to say in a way that's legal for every party's jurisdiction.

Kinrany 3y ago
Is it possible to have the contract be explicitly split into two wordings, one for each legal system?
- eru 3y ago
  That probably depends on the legal systems in question.
- jkaplowitz 3y ago
  There are more than two legal systems in the world.

bitwize 3y ago

In American law, a contract must have three parts: an offer, acceptance, and consideration. Consideration is something of value given in exchange for the offer in the contract. Because there is nothing paid for a piece of open source software downloaded off the interwebs, there is no consideration. Therefore, open source licenses by themselves constitute what is known as a bare license and may be revoked at any time, for any reason, by the licensor.

1MachineElf 3y ago
Using this logic, how might it play out for Red Hat Enterprise Linux? They are now requiring payment in exchange for access to the source code.
- bitwize 3y ago
  Red Hat may start requiring CLAs for any source they accept as contribution to any software they maintain. To do otherwise would put them at risk of contributors rescinding their licenses and preventing Red Hat from distributing the software they make money on. CLAs may become standard for all serious open source projects for similar reasons. There's a reason why CLAs, including signed permission from your employer, have been standard for GNU Project contributions since forever ago, even if it weren't tied to this particular issue. It gives the FSF free and clear rights to the code to enforce copyleft without the potential for legal snags regarding ownership and permission to distribute later on down the line.
  - michaelmrose 3y ago
    You still need to show that rescinding the license you granted for your open source code is even a thing. It would basically look to collapse a good portion of the software industry into an endless flurry of lawsuit from any number of contributors and their heirs looking to monetize blackmailing projects by threatening to take back contributions. Why wouldn't the US court system nope out of all that by any means available?
    - 3y ago

weinzierl 3y ago

I'm also an engineer that had to study basic law and what you described matches what I learnt. A contract requires a statement of intent[1], where the bar for this is pretty low, e.g. a handshake. So, many things are considered a contract that a layman wouldn't think of. Of course not literally everything is a contract and the question regarding the GPL here is if this minimum threshold can be considered crossed. [1] I think this is pretty universal across legal systems, but I could be wrong.

pessimizer 3y ago

I'm pretty sure all contracts require an exchange, even if a token one. That's why there's a concept of a token payment. A contract without an exchange (a 1-sided contract) is a covenant. A FOSS license is granting a right of use under a particular set of restrictions, and it is doing it through the means of voluntarily giving up the government-granted right to enforce copyright that the author is entitled to. But the customer is giving nothing. It can't be a contract. The violation of it only represents a loss for one side. A license in exchange for payment is a different story.

randomNumber7 3y ago
It can still be considered like an exchange when there is written: "If you use this software, then you agree to comply to the license". Im not sure though to be honest. I might depend on the law system or the mood of the judge.
- pessimizer 3y ago
  To me, that's like saying, "You can have a glass of water, but you can't have my car" is a contract. "Give me a dollar and you can have this glass of water" is a contract. edit: and to be a tiny bit less glib, a license is where I give up rights I already have, under particular conditions that I dictate. If you choose not to abide by those conditions, the only thing that happens is that I regain the ability to use the rights that I already have. I don't gain any super-copyright powers, or a more powerful copyright.
  - randomNumber7 3y ago
    I know a farmer in a small village and they sell milk and cheese etc. There is no cashier, you take what you want and let the money there. It would still be breaking a contract if you dont...
    - em-bee 3y ago
      because you trade something for something else. defining what the trade is when i download a GPL application is a bit trickier.