Which is super-helpful only if you never intend to leave the US.
Most software has users in 200+ jurisdictions, and you can get sued in almost any of them. A court in the Maldives or New Zealand might have a very hard time enforcing a judgment if your legal presence is only in the US, but outstanding judgments can mean:
1) A cap on growth (you can never establish a presence in those jurisdiction until / unless you've resolved you ballooning liabilities)
2) A cap on acquisitions (you can never be sold to or buy an organization with a legal presence there, again, without work)
3) In a worst-case, if the liability is bad, being personally thrown in prison the instant you step off of a plane in a jurisdiction where you have outstanding liabilities.
... and other badness.
It, therefore, often make sense to avoid walking along the edge cases of the law.
The FSF and friends have very explicitly commented that the GPL is not a contract. (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) There's nothing explicitly saying so in the GPL text, and the section saying that if you don't accept the "license" you will be in violation of copyright law can actually be read both ways (IMHO).
If you search around, quite a few jurisdictions have apparently ruled that the GPL can be treated as contract. Even the US, maybe: https://qz.com/981029/a-federal-court-has-ruled-that-an-open... (note: take conclusion with a grain of salt). From a common law perspective though, there's really no reason to not consider the GPL a contractual license..
That said, I honestly don't know what's worse -- breach of contract or breach of copyright law. The latter can sometimes carry criminal consequences (and yes, you can be extradited if you are unlucky), while a court ordering performance of contractual obligations can be bad if it's really inconvenient for the business.
One of the interesting pieces of law is that in a situation like this one, the intent of the drafter is strongly taken into account. The FSF says it's not a contract, publicly and vocally. That will be used in any court, and a court is very unlikely to overturn that.
> (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.)
I can't speak for FSF lawyers in general, but Eben Moglen, who drafted this language, is a super-careful lawyer.
Why are EULAs contracts and the GPL is not?
Under U.S. law, a license is a contract. In fact, an EULA is an "end user license agreement."
The difference between a license like the AGPL and a normal contract is in how the contract is formed. Normally a contract requires explicit acceptance to be valid, but for licenses implicit acceptance is allowed, such as by using the licensed material after having been showed the license governing the use of that material.
1) A contract requires a meeting-of-the-minds around an agreement. For an EULA, you click [I agree].
2) A contract requires consideration. With an EULA, there is generally clear consideration exchanged.
3) It's called an "agreement" whereas the LGPL/GPL/AGPL is very careful never to do that or to ever say "agree"
4) the drafters stated it's not an agreement
... and so on. In other words, every effort is made into making EULAs act as contracts, and the opposite for FSF licenses.
More background: https://www.gnu.org/philosophy/enforcing-gpl.html
Excerpt for where to start reading: "This right to exclude implies an equally large power to license—that is, to grant permission to do what would otherwise be forbidden. Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits."
Much like most lease agreements that are full of illegal or inoperative clauses, EULAs are largely a bluff backed not by the law but the other party’s ignorance and the threat of a ruinous lawsuit. The process is the punishment.
Of course once you want to redistribute or create derivative works you need additional permission.
https://toslawyer.com/are-end-user-license-agreements-enforc...
https://www.mertzel-law.com/post/click-here-are-your-eula-an...
But not all EULAs.
AGPL and most GPL derivates were certainly made with the help of lawyers, but those lawyers overwhelmingly studied American law, since that's where these licenses came from. They can be used in other countries of course, but they are full of American legalese. Direct translations do exist but they don't alter the words to accomplish the same effect under different systems of law. For example, the vitality of GPLv2 does not apply in Germany: https://cms-lawnow.com/en/ealerts/2022/01/developments-in-op... and GPLv3's punishment clause protecting violators for their first incompliance, without further punishment, was denied: https://blog.versioneye.com/2015/09/21/judgment-to-gpl-viola...
The exact same legal text can have an entirely different meaning when interpreted by a foreign judge in another country. What is a watertight contract in one place, is a breach of a party's freedoms in another. There's a reason the exact text written in treaties is argued over for years, because it's challenging to express what you want to say in a way that's legal for every party's jurisdiction.
International law sucks and it's 100x more expensive than enforcing a domestic agreement.
As to the first link:
When a person redistributes a GPLed program or a derivative work of one and refuses to share the source code with their recipients, there is a reason even most American GPL lawsuits are brought by or with delegated authority from a copyright holder of the original work. A regular recipient with no copyright claim might not have as strong of a claim to standing, especially if the defendant claims not to have consented to the GPL in the first place.
Without consent to the GPL, or even if the GPL is breached after valid consent, it’s entirely possible that the consequences imposed by an American court will be damages for copyright infringement and an injunction against further distribution of the infringing work without further copyright holder permission. It is not automatic that source code sharing, which would be an example of what’s called specific performance, will be ordered. It’s only one tool in a court’s toolbox of remedies, and a relatively disfavored one (especially in cases like this where unrelated corporate trade secrets might be exposed by such an order or where conflicting third-party licenses might actually forbid compliance).
The reason some level of source code sharing often results from these lawsuits is not because of a clear legal right to demand that a court order it, but because defendants usually prefer to comply than pay damages and suffer an injunction against further infringement, and plaintiffs in GPL lawsuits usually prefer to forgive past infringements in connection with obtaining compliance.
As to the second link:
The approach of American courts to this circumstance would likely vary by state. The GPLv3 doesn’t actually say that the penalties for the first violation are waived if the violation is cured within 30 days, and the wording for what it does say in this provision isn’t ambiguous, so some American courts would limit their analysis to the “four corners” of the contract/license and not infer a waiver of the penalties for the first violation any more than did that German court.
Other American courts would accept evidence of what the licensor or the license author intended, and therefore possibly waive those penalties in case of a timely cure.
(When I say “some American courts” or “other American courts”, it’s really a matter of which state’s law applies more than which court. But which court is actually making the ruling may literally matter when the relevant point of the relevant state’s law has not been clearly settled by that state’s highest court, when that highest state court is considering reversing its own prior ruling, when it’s unclear which state’s law should apply, or when the court makes mistakes in inexpertly applying the law of a state whose law it doesn’t often apply.)
A lot of people assume that more of the GPL has been authoritatively interpreted in court than is actually true. Most GPL compliance disputes never make it to court, and some that do end in settlements. Only very few end in final rulings, and most of those are lower courts or mid-level courts which in no way (beyond potential persuasive value) bind the rulings of other judges within the state or country.
Disclaimer for this entire comment:
I am not a lawyer in any country and am not giving any specific advice here about how any specific court would rule in any specific case. I have however attended the beginning of US law school including the introductory contracts law course, and have also collaborated in the past with lawyers specialized in the area of free and open source software as part of my Debian developer activities and my director and officer roles in the free software nonprofit Software in the Public Interest (SPI), as well with similarly specialized lawyers when I was in an open source-focused technical role at Google.
To avoid confusion, I hold no current director or officer role with SPI and am currently entirely inactive in Debian, though I officially remain a Debian developer and a non-contributing member of SPI. I also no longer work for Google. I am only speaking for myself here and not for Debian, SPI, or Google. I mention my past work with them only as relevant context informing my comments above.
IANAL. But, obviously, a license is a license, and a contract is a contract.
If I produce a copyrighted work, you can't copy it without my permission, which is what a license is. If I grant you a license, I can require that you do something for me in return (e.g. pay me), and I can restrict what you can do with your copies. That's a contract, and if you violate it's terms, you might lose the license.
What did I miss?
accepting a license (maybe implicitly by downloading content) => contract.
Lawyers and courts then decide if certain clauses are ok and valid or not, if and when someone sues. I'm not sure what differences you see between contracts and licenses. In Both cases, both parties have obligations and responsibilities to follow, in return for a gain (or sometimes no gain).
In some countries, the difference is the kind of court or tribunal that is involved in the dispute.
The licence is the permission to do something that without the licence you would not be permitted to do.
The contract is the agreement between the licensor and licensee as to the specific terms that surround the granting of that licence.
Consider a company licensing music - company A and B might both have an identical licence to use a particular song for any purpose, but the contracts they agreed for payments could be very different based on expected usage.
Breaking the terms of the licence is using the thing in a way that the licence doesn't expressly permit, e.g. if you have a licence to use any song from a company's entire catalogue for a TV show, but you then use it for a different show or in a film. Another example: I've worked on a computer game where we had a licence to use a particular song in-game, but not in promotional material.
Breaking the terms of the contract is failing to uphold your obligations, e.g. failing to pay an agreed annual fee or the correct amount of royalties.
A copyright license is a contract, wherein the copyright owner agrees to allow a third party the use of their copyrighted material in exchange for [X]. X might be money, or it might be an agreement to limit how the copyrighted material is used. There isn't another document or anything that says "License to Use [Copyrighted Material]",
This means that losing the "license" is the same as saying you no longer have an agreement allowing you to use the copyrighted material.
If you don't adhere to the conditions in the license, the license is revoked, and you're back to copyright infringement, with all the consequences.
If you're made aware that the code you copied in good faith was not allowed to be granted to you under those terms, you'd probably just lose your right to use the code and nothing more. The person redistributing code under a wrong license is the main culprit, but since they were never allowed to hand out a license, you're screwed because of them. If you choose not to distribute the source code, you must remove it from your product as soon as possible.
Of course, this does assume that the code you copied passes the originality threshold. A simple multiplication or a very basic algorithm can be considered too simple to copyright, and GPL would be powerless.
It's so possible the use of the copyrighted code can be considered fair use. In the USA, Oracle sued Google over some GPLv2 API definition, but Google was ruled not to have to abide by the terms of the GPL license in that case, because of fair use reasons.
A FOSS license is granting a right of use under a particular set of restrictions, and it is doing it through the means of voluntarily giving up the government-granted right to enforce copyright that the author is entitled to. But the customer is giving nothing. It can't be a contract. The violation of it only represents a loss for one side.
A license in exchange for payment is a different story.
"Give me a dollar and you can have this glass of water" is a contract.
edit: and to be a tiny bit less glib, a license is where I give up rights I already have, under particular conditions that I dictate. If you choose not to abide by those conditions, the only thing that happens is that I regain the ability to use the rights that I already have. I don't gain any super-copyright powers, or a more powerful copyright.
defining what the trade is when i download a GPL application is a bit trickier.
[1] I think this is pretty universal across legal systems, but I could be wrong.
Because there is nothing paid for a piece of open source software downloaded off the interwebs, there is no consideration. Therefore, open source licenses by themselves constitute what is known as a bare license and may be revoked at any time, for any reason, by the licensor.
CLAs may become standard for all serious open source projects for similar reasons.
There's a reason why CLAs, including signed permission from your employer, have been standard for GNU Project contributions since forever ago, even if it weren't tied to this particular issue. It gives the FSF free and clear rights to the code to enforce copyleft without the potential for legal snags regarding ownership and permission to distribute later on down the line.
Maybe that's just the GPL due to how it's formulated.
The answer is no -- just the opposite. In Jacobsen v. Katzer it was ruled that the Artistic License is not a contract, and the licensor could seek damages for copyright infringement, not just breach of contract. In Artifex v. Hancom it was ruled that because the defendants did not agree to the contract terms for a proprietary license, the terms defaulted to the GPL which they were found in violation of as a license, not a contract.
And if a license is not a contract then it is a bare license and can be rescinded at any time for any reason.
I'm not aware of any case in which for instance someone has successfully defended their right to rescind a license to the GPL license code they granted in history. A pragmatic court given 2 plausible interpretations with some merit isn't obligated to endorse an interpretation with an obviously negative effect they're people not CPUs interpreting code.
A timeline where we need a GPLv4 to cover the case of assholes taking back their shit contrary to decades of expectations and leaving mission critical v2 projects like Linux constantly at risk of a 10,000 time bombs from heirs taking back daddy's code is clearly the dumbest of all possible worlds and we are under no obligation to live there if their is a reasonable out.
My money is on this theory remaining a fairy tale until someone actually spends enough money to test it and its dissolved forever by actual case law.
Artifex Software, Inc. v. Hancom, Inc. which was ultimately settled out of court seems to have found the exact opposite of what you said if I read this correctly.
https://www.synopsys.com/blogs/software-security/breach-gpl-...
Jacobsen v. Katzer is a complicated affair but regardless of your interpretations it certainly doesn't concern the revocation of a bare license. Most of the action seems to concern whether the party could get damages.
This is not what the motion for summary judgment in Artifax v Hancom ruled...
The issue was not whether the GPL was a contract, but rather what the proper measure for damages should be. The Defendant argued $0 because there was no royalty owed for the GPL license, but the court ruled that the correct measure for damages of this breach of contract should probably have been the royalty that would have been paid if Defendant had entered into the commercial licensing contract which would have applied if they had entered into the proper license for their intended use of the copyrighted material. However, as this was a motion for summary judgment and not a ruling on the merits, it has no precedential value.
And with respect to Jacobsen v. Katzer, the issue was that the Plaintiff was seeking to enforce copyright infringement provisions in lieu of pursuing the infringement as a breach of contract. The Federal Appeals court ruled that a breach of an open source contract constituted both a breach of contract and also a infringement of copyright. The point of the case was to allow a second cause of action because copyright infringement claims are easier and usually more monetarily valuable to pursue than a breach of contract claim.