We Were Wrong About the GPLs
writing.kemitchell.com
writing.kemitchell.com
The FSF tried to say that everybody was injured when the GPL is violated (a position I consider morally true) but as the article points out it’s no longer the 1980s.
Note: I wrote the original blanket assignment (and executed it) and the first gnu library license (LGPL), though they have since involved. So my perspective is looking back at the 80s as well.
They're arguing that it's really a contract, and can sue because they're someone who benefits from the contract. (And really, anyone could, since we're all intended to benefit from the release of source code.)
If they lose, they would have to track down whoever originally wrote the software and get them to sue. Or maybe convince them to give ownership to the Conservancy?
Have I got that right?
Minus details, yes, that's what I understand as well.
My licenses will have to make it clear that they are both licenses and contracts, including with third parties.
Further, if Vizio are claiming to not have a contract, then they don’t have a license, which means they are admitting in court to have wilfully and knowingly committed copyright infringement.
Basically, this whole question would have been less costly for the SFC with it spelled out.
The awkwardness in the evidence comes from all the old writing, tracing back to FSF, arguing license to the exclusion of contract.
The explanation in the article is still somewhat unsatisfactory though, given that it seems to fly against all case law i’ve heard about.
Is there not a more substantial reason? Genuinely curious
Yes recent case law says GPL can be a contract, I don't think there's any doubt about that. This fact flies in the face of FSF's assertions about GPL not being a contract. I wonder whether the reason provided in the article, i.e. "gentlemanly rapier of copyright—the elegant weapon of a more civilized age" is really the sole motivation why the FSF decided to stick to this now-proven-false narrative. It feels like there's more to the story than trying to be "gentleman" or an aversion against using the same mechanism as EULAs... (I think most FSF people generally aren't fond of software copyrights, just that they decided to fight copyright with copy"left"?)
I don't see how a license as a contract harms any of this. A license is a sort of contract, where I do my part (distribute source alongside binaries, say), and in exchange I get something (the right to distribute the software). If I patch the binary to remove the "agree to the gpl" part of the installer, then I don't have a license to use the software anymore, it doesn't help me at all.
What is the legal basis for the default position here? (By which I mean the idea that you have no right to use something that hasn't been licensed to you.)
I think I understand the legal basis for the idea that it's illegal to copy something whose copyright isn't licensed to you, but if you already have a copy legally before accepting the license - what prevents you from doing whatever you want with it?
This is largely based on ProCD v. Zeidenberg:
https://en.m.wikipedia.org/wiki/ProCD,_Inc._v._Zeidenberg
That case involved a literal shrinkwrapped product – a piece of software sold on CD-ROM in the 90s – where the contract was stored on the CD-ROM and thus could not even be reviewed without breaking the shrinkwrap, which in turn could only happen after buying the package from a retailer. If the purchaser read the license and decided not to accept, they would have spent their money on nothing.
But the contract instructed purchasers to return the package if they didn’t agree to it, and purchasers apparently had the opportunity to do so and get their money back, and the court decided that was good enough. If a purchaser chose not to return the package and instead continued to use the software after seeing the license, they could be considered to have accepted the contract.
That said, the purchaser in that case did check an “I agree” box in the installer rather than try to bypass it – but at least based on the Wikipedia article, it sounds like that fact wasn’t as crucial to the outcome as one might expect.
That is not quite the same thing as claiming you don't have a right to use something without a license, hence my question. If someone gives you a copy of the software without any indication that it comes with any sort of license at all, and you patched it to bypass the agreement that popped up after you ran it, what did you violate exactly? You got the software without agreeing to anything, so what's the legal basis for the idea that you can't patch it and use it without agreeing to the license?
Isn't this the same thing as unknowingly getting a stolen item from someone? You don't get to keep it just because someone gave it to you.
morality has nothing to do with contract (or copyright) law in a common law country.
no one should think that getting cute by "bypassing" an acceptance screen will make a difference to the outcome, let alone be crucial. what matters is whether the user has sufficient notice that using/proceeding/whatever is agreement, and that they had a chance to know what they were agreeing to. theres no special magic in an "agree" box, except insofar as asking the user to click it contributes to notice that the user is making an agreement.
analogies are dangerous, but these concepts are intuitive if you think in terms of real property.
right to exclude: you have the right to exclude most people, under most circumstances, from your house.
doesn't arise from agreement: you can let joe into your house without an agreement. you can also kick him out whenever you want, unless you and joe made an agreement that limits your right to exclude him (or a legal exception applies).
in our analogy, the agreement might be a lease. (btw, the lease will limit the owner's right to exclude, and it will probably give both sides some non-property--i.e., contractual--rights. telling the two kinds of rights apart is the subject of the article.)
there are exceptions, just like there are exceptions in copyright. you know the names of some of them, like fair use. similarly, there are rights for people who don't have a formal lease, and there are rights that exist even if a lease purports to reject them.
but what you call the "default position" is the same: the property owner has the right to exclude others.
exists wherever the property exists: the right to exclude someone from real property attaches to the land and stays with it. similarly, copyright attaches to the protected expression; the copyright owner's right to exclude is already attached to the copy you have.
now you can see why you don't get to do whatever you want with a copy if you don't have an agreement: the copyright already governs your copy. it lets the copyright owner exclude you. if you want protection against that exclusion, then you need to agree to a license.
that is, of course, a gross oversimplification. for example, you emphasize "copy", but the copyright owner has other rights, such as the right to prepare derivative works, the right to distribute the work, and the right of public display. the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work, and that in itself would been a copyright violation. on the other hand, just having a copy isn't a copyright violation because "having" isn't a protected right. details like that rarely matter though. i only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.
> I only point them out to illustrate that it's dangerous to make assumptions about what words mean or to think of the law as a battle of semantics.
To be clear, I was never claiming this is legal. I figured well enough that it probably isn't. My question was, what is the legal basis for it.
> copyright is a right to exclude
Note the comment I replied to wasn't talking about copyright (at least not explicitly). It claimed there is no right to use software without agreeing to its EULA. The entire question here seems to be about whether an EULA is a contract or a (copyright?) license, so that itself isn't clear. But in either case, you presumably have the right to at least copy the work as-is, so I'm assuming no copyright violation is happening at least up to that point.
> the act of removing "the 'agree to the gpl' part of the installer" may have created a derivative work
Your rebuttal hinges on the implementation of the bypass mechanism. I'm trying to get to the heart of the matter, and I don't get the impression it should depend on that (but do correct me if I'm wrong). If you need a concrete implementation to discuss the crux of it, consider this: you can just as well imagine bypassing some program's agreement by modifying the environment around the program, and thus not actually creating a derivative work. (In the simplest case, imagine a naive program that just checks to see if a "is_licensed=true" exists in some config file, and imagine the user setting that manually to bypass the check. The program stays intact.)
I think the heart of the question here is: if you know the intention was to make you agree to the license, but you never agreed to do that, and you managed to get the program to get past that point... what exactly did you violate? It certainly doesn't seem like you violated copyright, given you had every right to copy the work. And it doesn't seem wasn't any contract you were bound by - was there? So when/why is that (not) legal?
If I were going to summarize my mental model overall, I would say that terms like GPL pasted into license notices for published source code memorialize the terms of contracts that grant licenses. In the jargon, the deals between developers, users, and distributors are "license agreements".
The argument against revocation at will is either reliance or consideration---contract doctrines. If there's ambiguity or vagueness in the terms, it will be argued under rules of construction---again contract doctrines---not statutory interpretation or some copyright-specific scheme. Claims for exceeding the license or breaking rules in the terms will be infringement when preempted and breach otherwise, with a lot of work still to be done sharpening lines like the "extra element test" and "substantial use restrictions". The defense to plead against an infringement claim is license---a property concept.
The fundamental error of "license, not contract" is really the underlying idea that they're mutually exclusive. They're really integral and complementary. Between private parties, contracts are the means by which licenses are given and received.
When writing specifically about the GPLs, the claims are usually about the source code requirement. I can slip into just saying "contract" because that's where I see those claims heading.
I'm going to ensure my licenses make it clear that they are contracts, including with anyone the software is distributed to.
https://blueoakcouncil.org/license/1.0.0#acceptance
We've published a very liberal license for use of the Blue Oak license text, as well:
Are you saying the "Acceptance" section is what turns it into a contract? I'll ask my lawyer about this, but as a lawyer who is NOT my lawyer, do you think that preemption would still be a problem if the SFC was suing under the Blue Oak License?
By the way, thank you for the liberal license; that was one big reason I started with Blue Oak.
My best guess is in the blog post. A lot of activist attention was focused on trying to push back against strong copyright. If that work succeeded, it could have meant nothing if "evil" software companies just used contract law to restrict software instead.
There is copyright. Everything has it. There is also copyleft. It's an act of copyright. Comply by sharing when asked, or you've violated the terms unless you negotiated some alternative arrangement ahead of time.
I look at all the hand wringing by the legal profession and I just have to shake my head in confusion in how the semantics on this are still contested so in a profession where we even acknowledge that what is written may not be reflective of the original intent.
Then again, billions of dollars worth of captive audience/free developer hours are up for grabs. Suppose I shouldn't be surprised.
as our understanding of the law improves and as the methods and strategies to take advantage of public code evolves, our strategies to defend against misuse must necessarily also evolve. for me the question is not, which interpretation is right, but which one works to convey and protect the intention of FOSS licenses.
the most important aspect in my eyes is that the intention has always been consistent and will not change, and that all changes in the explanation and interpretation are intended to uphold that intention.
Of course it would be relevant to me because if someone sues some other hardware vendor for GPL'd source code and wins pointing at precedent set by Conservancy v. Visio, they'll likely publish that source online where I can get it, but that's not what I'm asking about.