A Beginner's Look At GPL Enforceability

sirmikester writes "I wrote a term paper for my University of Illinois law class about the enforceability of the GPL. Unlike most of the papers dealing with the GPL, this one was aimed at a primarily non-technical audience. While a little bit rough around the edges, I'm sure it could give all of the non-technical folks out there a look at the GPL, and why its so important to all of us. There is also a powerpoint presentation available of the speech that I gave to the class about the paper. "

Comments

not a contract

[raffe]

Sorry to destroy your day på gpl is a license and not a contract.
Check it out here :
http://www.groklaw.net/article.php?story=200312 142 10634851&query=gpl+is+a+license

"a lot of the confusion about the gpl stems from this central isue: Which is it? a license or a contract? The reason that matters is because if it's a contract, then you enforce it under contract law, which is enforced state by state, and there are certain necessary elements to qualify as a valid contract. If it's a license, then it's enforced under copyright law, and that's enforced on the federal level according to the terms of copyright law, not contract law. The penalties available are not the same."
[...]
"The gpl is unequivocally a license, and that's the truth."

Re:Conclusion bugs me

[darkonc]

There was at least one injunction issued against a GPL violator in Germany. The NetFilter people got the injunction against a router distributor.

A second article in the German American Law Journal claims to minimize the first article, but still includes the following juicy tidbit:

In addition, without an opinion from the court, any interpretation of the Munich ruling may eventually find support. That would include the view that the court may have disregarded, and found unnecessary to explore, the GPL and simply ensured that the creator of a copyrightable work may impose any legal terms for its distribution while a distributor may not give the false impression that a work is in the public domain or in his own ownership. The same result would hold true for any of the multitude of distribution schemes involving published source code and for those prohibiting the publication of source code.

I think that this puts a very suscinct spin on the GPL validity question -- If you want to invalidate the GPL in court, it wouldn't be a case of having to defend the GPL de novo. As long as the underlying copyright is valid, it would be the violator under the gun to prove that the conditions of the GPL (placed on what would, otherwise, be a violation of copyright law) are somehow illegal -- and not very distinguishable from invalidating conditions that (for example) prevented publication of the source code.