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

What is OSS worth when you get right down to it?

[Anonymous Coward]

The presentation is in powerpoint? Does this mean that when you really want to get your point across, you have to use Microsoft???? Come on now!

Conclusion bugs me

[HolyCoitus]

Personally, I wouldn't have put the people calling it into question and then the fact that it is unproven legally at the end. It might be best for the flow, but to conclude "All of this might be meaningless, as it hasn't been proven to work!" is slightly strange to me.

I didn't learn anything new from reading this, but there are those that might, as was stated by the submitter. In my opinion, telling the uninitiated simply that the GPL grants the right to use the code however you like, but if you decide to distribute it you have to agree to the contract stating that you'll give the source as well. If they have other questions, send them to the GNU.org philosophy page

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.

Re:Trademarks must be respected...

[Mr. Slippery]

Pre-pending GNU to Linux is an affront to the Linux trademark. Microsoft would be furious if people started advertising "x86/Windows XP".

"Intel x86/Windows XP" would be an accurate description of what are otherwise known as "Wintel" systems; the combination of the Windows XP operating system with the Intel x86 hardware platform. (As opposed to an "AMD/Windows XP" system, for example.)

Similarly, "GNU/Linux" is an accurate description of a GNU system running on top of the Linux kernel. (As opposed to a "GNU/Hurd" system, or a "GNU/*BSD" system, or an embedded system running some proprietary software on top of the Linux kernel.)

Neither is an affront to any trademark. In fact misusing "Linux" to refer to the entire system rather than the kernel would be improper use of the trademark, something like calling all sodas "Coke" or all photocopiers "Xerox".

Not a contract...

[albalbo]

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 - this kind of makes the whole paper useless, in my opinion, and is what led to the confused conclusion.

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.

Not so simple

[misterpies]

It's too simplistic to say that a court case will either confirm or deny the validity of the GPL. As always, the court will focus on the minutiae of the situation. It's very rare for a court to say "this contract is not legally enforceable in any situation" (unless the contract is for an illegal purpose or is so vague as to be meaningless). More likely, if a court rules against enforcement of the GPL in a case, it will cite some factual item in support. E.g. that the recipient of the software did not have proper notice of the license - quite possible if a company hires an outside programmer to do some work on some GPL'd code. Sure the GPL would bind the programmer, but it might not bind the company if they'd never looked at the source code or even realised the software was GPL.

It's no use (as is claimed in the paper) to say that the company had no right to distribute the software except under the GPL. That doesn't mean it's accepted the GPL by the act of distributing the software, if it has no knowledge of the GPL. That argument is like saying if I steal something, I must have agreed to buy it (since otherwise it would not be mine) and am in breach of contract for not paying for it. While someone distributing software without permission is in breach of copyright, it's different to distributing software in breach of the GPL. In the former, the copyright owner can stop distribution/use of the code, but he can't compel the distributer to release the source code, nor to hand over copyright in the modifications made to the code.

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."