4 ms·

We Were Wrong About the GPLs

107 points by feross 3y ago

jfengel 3y ago
Lemme see if I've got this straight. The Conservancy is arguing that the GNU Public License is not a license, because then they couldn't sue. (Only the person who owns the copyright, and made it available under the license, can sue.) They're arguing that it's really a contract, and can sue because they're someone who benefits from the contract. (And really, anyone could, since we're all intended to benefit from the release of source code.) If they lose, they would have to track down whoever originally wrote the software and get them to sue. Or maybe convince them to give ownership to the Conservancy? Have I got that right?
- gavinhoward 3y ago
  IANAL, but I wrote a few licenses and am working with a lawyer on them. Minus details, yes, that's what I understand as well. My licenses will have to make it clear that they are both licenses and contracts, including with third parties.
  - mr_toad 3y ago
    I guess it doesn’t do any harm but does that really need to be spelled out? Under what circumstances could a license be enforced if it wasn’t a contract? Further, if Vizio are claiming to not have a contract, then they don’t have a license, which means they are admitting in court to have wilfully and knowingly committed copyright infringement.
    - gavinhoward 3y ago
      By spelling it out, a good judge would give summary judgment (read "judgment without expensive litigation") that the license is a contract and that the plaintiff (SFC in this case) has a right to sue. Basically, this whole question would have been less costly for the SFC with it spelled out.
- comex 3y ago
  They’re arguing that it’s part license part contract, not that it isn’t a license at all. The rest is as you say.
- kemitchell 3y ago
  I do not believe Conservancy is arguing contract to the exclusion of license. They are arguing that they can sue under the source code requirement as a promise enforceable under contract law. Vizio is arguing that the source code requirement is only a license kind of requirement, so they'd have to be sued in federal court, and probably only by an owner of copyright in the software. The awkwardness in the evidence comes from all the old writing, tracing back to FSF, arguing license to the exclusion of contract.
hnfong 3y ago
This is the first time I’ve seen anyone attempt to explain FSF’s stance on the GPL not being a contract. The explanation in the article is still somewhat unsatisfactory though, given that it seems to fly against all case law i’ve heard about. Is there not a more substantial reason? Genuinely curious
- gavinhoward 3y ago
  AIUI, the author is agreeing with you, saying that case law says that licenses are contracts and that FOSS advocates should adopt that position.
  - hnfong 3y ago
    I typed my original comment on my phone and now I read it it seems a bit unclear what I was trying to say. Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)
    - f33d5173 3y ago
      EULAs conventionally use shrink wrap to get you to agree with them: "click this checkmark, or else the software won't allow you to use it". If I patch out the checkbox, then I never have to agree to the contract, and I can use the software without worry. With a license, I need to agree to it to be legally allowed to use the software in the first place. I don't see how a license as a contract harms any of this. A license is a sort of contract, where I do my part (distribute source alongside binaries, say), and in exchange I get something (the right to distribute the software). If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all.
gumby 3y ago
This points out the reason assignments are so important: standing. Ultimately the court looks at the “person” who is being “injured” and the way the US looks at things that’s the legal owner. The FSF tried to say that everybody was injured when the GPL is violated (a position I consider morally true) but as the article points out it’s no longer the 1980s. Note: I wrote the original blanket assignment (and executed it) and the first gnu library license (LGPL), though they have since involved. So my perspective is looking back at the 80s as well.
rurban 3y ago
So why isn't the FSF suing then? On state law (copyright law). Much broader than just California, much higher win
AntiMS 3y ago
The article says early on that under California law, third parties intended to benefit from a contract can enforce those terms and that's "the crux" of Conservancy's lawyers' argument. But near the end it says that depending on the ruling in Conservancy v. Visio, we may get precedent that "anyone in the United States who wants GPL source code can sue for it, contributor or not." Any idea how it is that this case about California law could set precedent relevant to little old me who lives in Not-California, U.S.A.? Of course it would be relevant to me because if someone sues some other hardware vendor for GPL'd source code and wins pointing at precedent set by Conservancy v. Visio, they'll likely publish that source online where I can get it, but that's not what I'm asking about.

107 points by feross 3y ago

Lemme see if I've got this straight. The Conservancy is arguing that the GNU Public License is not a license, because then they couldn't sue. (Only the person who owns the copyright, and made it available under the license, can sue.) They're arguing that it's really a contract, and can sue because they're someone who benefits from the contract. (And really, anyone could, since we're all intended to benefit from the release of source code.) If they lose, they would have to track down whoever originally wrote the software and get them to sue. Or maybe convince them to give ownership to the Conservancy? Have I got that right?

gavinhoward 3y ago
IANAL, but I wrote a few licenses and am working with a lawyer on them. Minus details, yes, that's what I understand as well. My licenses will have to make it clear that they are both licenses and contracts, including with third parties.
- mr_toad 3y ago
  I guess it doesn’t do any harm but does that really need to be spelled out? Under what circumstances could a license be enforced if it wasn’t a contract? Further, if Vizio are claiming to not have a contract, then they don’t have a license, which means they are admitting in court to have wilfully and knowingly committed copyright infringement.
  - gavinhoward 3y ago
    By spelling it out, a good judge would give summary judgment (read "judgment without expensive litigation") that the license is a contract and that the plaintiff (SFC in this case) has a right to sue. Basically, this whole question would have been less costly for the SFC with it spelled out.
comex 3y ago
They’re arguing that it’s part license part contract, not that it isn’t a license at all. The rest is as you say.
kemitchell 3y ago
I do not believe Conservancy is arguing contract to the exclusion of license. They are arguing that they can sue under the source code requirement as a promise enforceable under contract law. Vizio is arguing that the source code requirement is only a license kind of requirement, so they'd have to be sued in federal court, and probably only by an owner of copyright in the software. The awkwardness in the evidence comes from all the old writing, tracing back to FSF, arguing license to the exclusion of contract.

hnfong 3y ago

This is the first time I’ve seen anyone attempt to explain FSF’s stance on the GPL not being a contract. The explanation in the article is still somewhat unsatisfactory though, given that it seems to fly against all case law i’ve heard about. Is there not a more substantial reason? Genuinely curious

gavinhoward 3y ago
AIUI, the author is agreeing with you, saying that case law says that licenses are contracts and that FOSS advocates should adopt that position.
- hnfong 3y ago
  I typed my original comment on my phone and now I read it it seems a bit unclear what I was trying to say. Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)
  - f33d5173 3y ago
    EULAs conventionally use shrink wrap to get you to agree with them: "click this checkmark, or else the software won't allow you to use it". If I patch out the checkbox, then I never have to agree to the contract, and I can use the software without worry. With a license, I need to agree to it to be legally allowed to use the software in the first place. I don't see how a license as a contract harms any of this. A license is a sort of contract, where I do my part (distribute source alongside binaries, say), and in exchange I get something (the right to distribute the software). If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all.

gumby 3y ago

This points out the reason assignments are so important: standing. Ultimately the court looks at the “person” who is being “injured” and the way the US looks at things that’s the legal owner. The FSF tried to say that everybody was injured when the GPL is violated (a position I consider morally true) but as the article points out it’s no longer the 1980s. Note: I wrote the original blanket assignment (and executed it) and the first gnu library license (LGPL), though they have since involved. So my perspective is looking back at the 80s as well.

rurban 3y ago

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

AntiMS 3y ago

The article says early on that under California law, third parties intended to benefit from a contract can enforce those terms and that's "the crux" of Conservancy's lawyers' argument. But near the end it says that depending on the ruling in Conservancy v. Visio, we may get precedent that "anyone in the United States who wants GPL source code can sue for it, contributor or not." Any idea how it is that this case about California law could set precedent relevant to little old me who lives in Not-California, U.S.A.? Of course it would be relevant to me because if someone sues some other hardware vendor for GPL'd source code and wins pointing at precedent set by Conservancy v. Visio, they'll likely publish that source online where I can get it, but that's not what I'm asking about.