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A Beginner's Look At GPL Enforceability 112

Posted by timothy 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. "
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A Beginner's Look At GPL Enforceability More

A Beginner's Look At GPL Enforceability

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  • What is OSS worth when you get right down to it? (Score:3, Funny)

    by Anonymous Coward on Wednesday May 05, 2004 @10:11AM (#9062996)
    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!
  • Still Puzzled but the use of words Starting with uppercase Letters.

  • GPL-ed!?! (Score:2, Interesting)

    by vijaya_chandra ( 618284 )
    Are the paper/presentation GPLed?!?!
  • Windows posted Sol.exe under the GPL?!?!

  • Conclusion bugs me (Score:5, Insightful)

    by HolyCoitus ( 658601 ) on Wednesday May 05, 2004 @10:26AM (#9063181)
    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 [gnu.org]
    • Especially since it kindof *is* proven legally: No one has challenged it successfully. That's very indicative, given the value of all the copylefted software out there.

      • Re:Conclusion bugs me (Score:5, Informative)

        by darkonc ( 47285 ) <stephen_samuel AT bcgreen DOT com> on Wednesday May 05, 2004 @02:34PM (#9066125) Homepage Journal
        There was at least one injunction issued against a GPL violator in Germany. The NetFilter people got the injunction against a router distributor [recht.us].

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

        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.
  • I forgot to post this in my original post, but Linksys is now offering their code in compliance with GPL. http://www.linksys.com/support/gpl.asp

  • Nice (Score:2)

    by raffe ( 28595 )
    Very nice. Please pass this paper on to no techies that you know. Spread the world. You can also post a comment about it on groklaw.net

    • Please pass this paper on to no techies that you know

      Not a problem. I already have passed it on to no technies. I'm actually one step ahead of you, as I've also passed it on to no non-techies.
  • Can you post this in ASCII please? When I download it I get an error in the PDF file because it is corrupted.

  • Definition of irony (Score:2, Insightful)

    by MarkGriz ( 520778 )
    Creating a presentation on GPL Enforceability.... in Powerpoint.
    • Creating a presentation on GPL Enforceability.... in Powerpoint.

      No it isn't, unless you went to the Alanis Morissette school of irony [m-w.com].

      • ...or unless he's using the definition of irony your provided:
        "3 a (1) : incongruity between the actual result of a sequence of events and the normal or expected result (2) : an event or result marked by such incongruity"
        I would expect researching and writing a paper on the gpl to result in using gpl'd software and non using powerpoint format. That's pretty incongruous with what actually happened. In fact, this event we're reading about seems to be marked quite strongly by that incongruity. How ironic.

  • PowerPoint? (Score:1, Interesting)

    by Anonymous Coward
    Why not OpenOffice.org formats?
    • Why not OpenOffice.org formats?

      Perhaps because the primary audience of the presentation aren't OOo users?

      • OpenOffice makes powerpoint files better than powerpoint, last semester my group had to make a powerpoint presentation, we each made our parts seperately then merged them, all of them used MS powerpoint and I used OO, my segment was the only part that didn't end up with a retarded swirl effect between slides, also my slides had the least difficulty with formatting after combining.
  • Okay, just so I'm clear on this... the presentation on GPL enforceability is done in PowerPoint? Do I have a license for that?

  • Not a contract... (Score:5, Insightful)

    by albalbo ( 33890 ) on Wednesday May 05, 2004 @11:44AM (#9064198) Homepage

    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/ [lwn.net] 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.

    • A software license is part of an agreement between two parties that can be considered a contract. That's what I meant in the paper.
      • Some software licenses are agreements, but not all of them. A simple license on the order of "do whatever you want with this code" does nto require any assent whatsoever. It is not a contract. It is a blanket permission.

        The GPL is not a contract. It does not require the licensee to give up any rights or properties in order to gain the permissions and privileges the GPL grants.
        • The licensee gains the right to utilize the source code, but gives up the right to not share those changes with others. This is a pretty significant thing to give up, don't you think?
          • This is a pretty significant thing to give up, don't you think?

            No, because they never had the right to share derivative works from someone else's copyrighted works in the first place.

            Consider the following:
            "Can I borrow your car?"
            "Ok, but only if you don't drive it faster than 60 mph."
            In this scenario, is the borrower "giving up" the right to drive the borrowed car faster than 60 mph?

    • 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 a

      • The author of the paper makes a reasonable case to consider the GPL as a binding an enforceable contract.

        The only "reasonable case" the author makes is that

        According to Linuxplanet.com columnist Dennis E.Powell,"software licenses are generally considered to be contracts."

        However, he makes no argument as to whether it should be considered a contract or a license, nor what the difference would be.

        Describing the consideration required in a contract, he says

        In the case of the GPL, the users of the softwa

  • short bibliography, and you don't express any original ideas. No wonder all our jobs are being outsourced. Anyone can summarize a few usenet posts and throw in enough filler and footnotes to make it 12 pages. I'm sorely unimpressed.
    • Anyone can summarize a few usenet posts and throw in enough filler and footnotes to make it 12 pages.

      Yeah, but how many people can do that in Powerpoint? I mean, give the poor kid some credit, it's Powerpoint for cryin' out loud!
    • The paper was meant as an intro to the concepts of free software and the gpl for beginners. It wasn't meant to be groundbreaking or innovative. You have to look at who was targeted. The only reason I submitted it to slashdot was to maybe get some feedback so that I could correct it. Also I think that its a great paper to send to people who don't know much about the GPL or free software...
      • I just thought ya know, if it was a journalism class it'd be great. but it looks to me the target audience was in the engineering department. a legal term paper in eng...i expect more detailed info as opposed to some crap that's being pushed to USA Today or a student rag.
        • When I gave the presentation about my paper in class, most of the class didn't even know what exactly source code was or why it was important to share. If this was my target audience, then how could I expect to get much more insightful than I did?

          I think you're expecting an in depth analysis of the GPL from a programmer and legal scholar's perspective. This was never the goal of the paper. I just wanted to write something that I could give to someone who knew nothing about programming and have them get

  • Not so simple (Score:5, Insightful)

    by misterpies ( 632880 ) on Wednesday May 05, 2004 @12:01PM (#9064422)
    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.
    • While I agree with you on the point that A -> B doesn't mean B -> A, stating A -> B isn't a bad thing in itself. In fact, you bring up the point that if I were to create a program and release it under the GPL, I could not release the source code which would in effect have no real effect (the only thing under which I could be in violating of is copyright and I own the copyright). As for your point about the programmer using GPLed code and the company not knowing, you're right that the company does
    • " That doesn't mean it's accepted the GPL by the act of distributing the software, if it has no knowledge of the GPL"
      Copyright law says exactly this - If I create a work, I own the rights to it automatically, and no one can copy it, even if they don't know it's mine. The law does not require that I put a notice in my code in order for my ownership of that code to be protected.
      ".. am in breach of contract for not paying for it. .."
      A recent discussion by someone else put it this way: If I own some land on a

      • I'm sorry, the GPL is undoubtedly a contract, since there is consideration from both sides. If it were a non-contractual license, it would have to be of the form "I give you the right to do X, without you having to do anything in return". Since the GPL expressly makes demands of both sides, it is a contractual license. It will only be binding on those who have notice of its terms.
        To use your river example, if you decide to charge for fishing rights and make all sorts of conditions, then they will only be en
        • Your facts are correct but your conclusion is not - the GPL is not a contract and, in fact, there is no way for you to force anyone to release sourcecode for exactly that reason. There's no such thing as a "GPL violation", thats merely a term of convenience. If you illegaly distribute a program thats GPLed, you can only be sued under copyright law. However, one possible remdedy would be compliance with the license, and it's possible that a court force that. From what I've read, though, courts generally don'
    • 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.

      WRONG! The GPL is exactly the same as copyright. The copyright owner can only stop the distribution/use of the code, just like you said. (They can also sue for cop

  • The open source movement did not exist at the time the GPL, copyleft, the free software movement, and the GNU project started. It seems odd, therefore, to give credit to a movement that had nothing to do with creating these documents and forming these ideas. As it stands, you appear to be using the terms "open source" and "free software" interchangably, as though they refer to the same thing. However the open source movement stands for a different philosophy than the free software movement [gnu.org].

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    If you feel this is too extreme a corrective measure,
    you may appeal this decision to the OIT office.

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  • First, I find a interesting (by interesting I mean big omission) that a contract analysis of the GPL could not mention the UCC (uniform commercial code). Either article 2 (sale of goods, which many courts have applied to software licensing - even though it doesn't really fit) or draft UCC article 2B.

    http://www.eecs.harvard.edu/~mdw/proj/linux/gpl - ucc2b.html

    How about trade secret protection? Might the Uniform Trade Secret Act (state laws) protect a company who is in violation of the GPL from having to
  • to all those making such comments... most universities make it a requirement to use powerpoint or somesuch. while the author of the paper probably would have done it via some sort of open software solution, the university may very well not approve of it. so yes.... it is ironic that a paper on the gpl has also a powerpoint presentation, but the author probably didn't have a choice in the matter.

  • not a contract (Score:4, Informative)

    by raffe ( 28595 ) on Wednesday May 05, 2004 @01:30PM (#9065430) Journal
    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."
  • I run a club on the UIUC campus called the "Free Software Society"

    We just brought Brad Kuhn of the Free Software Foundation here to campus for a great introduction to GPL. His question and answer at the end of the speech discussed topics such as enforcement.

    Anybody can listen to the speech here off our website [freesoftwaresociety.org], near the bottom. Its in, of course, a free-software supported codec format. (ogg)
    • Cool!

      I wish I had known about the club before I wrote my paper. It would have given me a chance to get some feedback from people knowledgable about the GPL and free software before I turned the paper in. Oh well, it was due so I had to turn in what I had...
  • He makes an innacurate statement in his interpretation of Section 2 of the GPL. Here is his quote:

    Section 2 specifies that any changes that are made to the source code of the program covered

    must be given back to the community and proper copyright notice must be preserved throughout the source code and program.

    The GPL Section 2 says:

    2. You

    may modify your copy or copies of the Program or any portion
    of it, thus forming a work based on the Program, and copy and
    distribute     such modifications or work under t

    • It has been established quite clearly that such in-house copying is not considered distribution.

      • It has been established quite clearly that such in-house copying is not considered distribution.

        There are further grey areas, though. What if, for example, I tweak a kernel, install it on my machine, and a few months down the track donate that machine to the local Salvation Army?

        Presumably I would have cleaned out /home and, among other things, /usr/src. This certainly isn't in-house, and thus probably a violation of the authors' copyright.

        Even MS turns a blind eye to this form of distribution, or at

    • They think that if they use GPL software and make some changes to the program that cause it to work a certain way in their own particular situation, that they will have to publish that

      If they distribute the software they do. And according to the FSF, if they merely distribute stuff that links to the software they do as well. And if RMS gets his way, GPL v 3 will also require publishing their source code if they merely use it in a server that clients can publicly access.

      That leaves only using the software
      • "If they distribute the software they do."
        I know. That wasn't the point.
        "That leaves only using the software purely internally. That's not what companies are worried about, I don't think."
        I think that is a much more common usage than you give credit. Most companies that aren't in the software business have no interest in distributing or publishing computer programs. They just want to use software that will monitor and analyze things in their factories, or controller programs to regulate stuff, or maybe p

    • are you allowed to make copies of your changed version to use on multiple computers within your own company?

      You need to make the source code available only to those to whom you distribute the binary.
      It seems to me that the requirements would be satisfied by putting the source code on any machine on which you also place the binary, or by placing the source code on a machine accessible by those machines on which the binary is placed, but not necessarily accessible by the outside world.

  • The GPL is not a contract as the author tries to show. It is a license. It is not signed by either party and one doesn't even have to read it in order to rip off source code from a GPL program. I can download the source code for thousands of programs from sourceforge and not even read the license file. Even after I read it, I can understand it. By using the source code, you are not agreeing to the license as if you signed a contract, but the only thing that gives you the right to use a GPL program is t
    • As soon as you take advantage of the right to distribute the software, you have agreed to the copyright owner's terms under the GPL, even if you haven't read the license. There is an agreement between two parties that results from this transaction. Both parties benefit, and hopefully the purpose is legal. If that doesn't fit the definition of a "contract" than I guess I don't know what the word "contract" means.

      • If that doesn't fit the definition of a "contract" than I guess I don't know what the word "contract" means.

        The difference is that if the GPL was an actual contract, the copyright holder could force you to uphold it.
        This means that the original author could sue those making derivative copies to force them to release their source code changes.
        They can't.
        All they can do now is sue them to prevent them from continuing to use the code.

        For example, if I were to release source code under a license that gave me

      • The fact that one party doesn't "agree" to anything. There doesn't have to be communication between the two parties to download source code and use it. A contract requires two parties to agree to the contract. You could not make your own license that requires anyone using your code to give you their cars for instance and hide that in a license file that comes with the code, then show up on someone's doorstep and demand the title to their car.

        GPL code is protected by copyright law, and if someone is usi

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