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A Beginner's Look At GPL Enforceability

Posted by timothy on from the ask-eben-moglen dept.

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. "

1 of 112 comments (clear)

  1. Re:Not a contract... by DerekLyons · · Score: 1, Troll
    The whole paper appears to be centred around the idea that the GPL is a contract. Most people seem to think the GPL is actually a licence, not a contract -
    Well, what matters isn't what 'most people think', but what the Law says, and what the lawyers and judges and think. The author of the paper makes a reasonable case to consider the GPL as a binding an enforceable contract.
    this kind of makes the whole paper useless, in my opinion, and is what led to the confused conclusion.
    The confused conclusion is an accurate reflection of the legal state of the GPL - it's neither fish nor fowl. It's not legally enforceable, not from precedent or derived from existing licensing laws, nor is it clearly "not worth the bits it's printed from" because it has never been tested in court. Many people act as though the GPL was every bit as certain as a patent, or a trademark, or a copyright. It's not.

    As a side note the author, probably unintenionally, makes an interesting point. To date, the FSF has relied on FUD to convince individuals and organizations to comply with the terms of the GPL - because they currently have no other weapons in their arsenal. (When the Linksys and SCO cases are finished, then we will know if the FSF has weapons, or is toothless. Not before.)

    http://lwn.net/Articles/61292/ is a useful discussion of the difference, once you accept it as a licence the whole discussion of "enforcability" kind of goes out of the window.
    The problem is, the article you reference bends the lanquage to support it's pre-ordained conclusion. It works from the assumption that since the title is "General Public License" it perforce must be a license. It then further bases it's arguement on the fact that since one professor opined that it must be a license, it has to be a license and since it's a license it must be a license. Muddy thinking at best. Dishonest circular reasoning at worst.

    Given that the Court has yet to rule on any case, the arguments that the GPL is this or that are equally valid, no matter what values you assign to those variables.