

The GPL is a License, Not a Contract - gnosis
http://www.groklaw.net/article.php?story=20031214210634851

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tedunangst
The "you'll be forced to give away the code" fallacy is not just FUD spread by
GPL haters. I've seen plenty of GPL advocates make the same remark, except
they say it's a good thing.

I mention this because the linked article strongly implies that only evildoers
would ever spread untruths about the GPL. The GPL is long and complex and the
FSF's own guidelines to "clarify" things are anything but clear.

~~~
SwellJoe
I find the FSF FAQ about the GPL (<http://www.gnu.org/licenses/gpl-faq.html>)
extraordinarily clear. Have you read it? It covers lot of the common questions
people ask, including how GPL and non-GPL code interact from a legal
perspective.

I've pretty much always found that every GPL argument (and I've dealt with a
lot of them, having worked with GPL-licensed code in commercial products for
over a dozen years) is settled by simply pointing someone to the correct
portion of the FSF documentation.

Yes, Open Source and Free Software fans often don't understand the license or
its implications, and more people are woefully ignorant of its meaning and
purpose than actually understand it, but I don't believe the blame can be
placed on the FSF documentation on the subject. As licenses go, it's pretty
plainly spoken, and as clarification of licenses go, the FSF goes into
extensive detail for anyone that wants to actually look into it rather than
starting flame wars based on whatever crazy notion someone has about the GPL
and what they _want_ it to mean.

I really don't think the blame can be placed on the FSF in this regard. People
just don't RTFM, especially TFM for licenses.

~~~
tedunangst
That is the document I'm talking about. I think their answers to questions
about derivative works and whatnot (basically the "how do I violate the GPL
without getting caught?" questions) are not entirely forthcoming. I can't
fault them too much for this, as providing a truthful and complete answer
would amount to being a guide to circumventing the GPL which is not in their
interest, but the questions and answers are carefully phrased to avoid
answering the _real_ question you're probably asking.

There is more wiggle room than the FSF would like people to believe (although
it's probably also less wiggle room than those people hope for).

~~~
SwellJoe
Perhaps I'm just a GPL fanboy, but I don't see how it's a failing of the FAQ
to provide a very clear, and understandable, path to not violating the
license. And, I don't see how documenting a strict and good faith approach to
following the license is in any way in conflict with the original article.

If you read the FAQ (and the license), and follow the terms clearly laid out
therein, you can't possibly be in violation of the license and you can't
possibly put yourself in a situation where you accidentally force your code to
become Free Software (though that's a nearly impossible outcome, even if you
_don't_ understand the GPL on any level, which is the point of the original
article).

The FAQ even _truthfully_ covers the situations wherein a company might want
to use the GPL for a Free Software version of their code while also retaining
copyright and offering other licenses (I've had to refer to this particular
FAQ many times in flame wars about my own products over the years, since I
always hold the copyright on the products I'm dual-licensing, and I use the
GPL for the Open Source releases), and while the ethical position of the FSF
often creeps into legal discussion, the facts are still quite clear.

I'm not sure I understand why the "real question" would be "how can I use this
code without distributing it under the same terms I received it under?" Aren't
we assuming good faith on the part of the "victim" of the GPL?

Frankly, all the flame wars about the GPL and the FSF always seem motivated by
something other than lack of clarity about the license. They seem based on
disagreements with the motives of the FSF, and I find it disingenuous to make
it about the license (which is clear to most people who actually read it, and
among the best documented software licenses in the world for those who can't
grasp its nuances merely from the license itself). If you don't like the Free
Software concept, and think BSD or public domain or something else is better
for you, or your business, or your customers, or whoever, then say so. Don't
argue that the GPL is incomprehensible or the FSF is trying to hide facts
about the GPL (the documentation for the GPL v3 is very enlightening and
transparent about loopholes in v2 they've tried to close and their reasoning
for the changes and additions to the license), as it really isn't.

~~~
srean
I think you nailed it in the last paragraph. Saving it for use later (with
proper credits, ofcourse).

------
hughw
The article starts off reasonably. The first sentence pulls you in, describing
the case you fear most: you have "inadvertently" incorporated GPL code into
your proprietary code.

But by the time it gets to the conclusion,you, the inadvertent infringer have
become a thief. If found to be infringing, "you do have a choice under the GPL
license: you can stop using the stolen code and write your own, or you can
decide you'd rather release under the GPL."

Hey! The presumption of the article was that I inadvertently infringed. It was
an accident. "Stolen" has a different connotation.

If I inadvertently infringed, I might have peppered that GPL code throughout
miles of my own code. The "choice" might be no choice at all, in practical
terms. Hey, you could always choose to go out of business.

This article reinforces the claim it purports to refute: that infringers "can
be forced to release their proprietary code under the GPL".

No defending infringers mind you. Just saying, the article seems to confirm
that the FUD isn't FUD after all.

~~~
rbanffy
How many programmers you know would accidentally include GPL'ed code into
proprietary apps that get sold to other people? Is there any documented case
of such accident?

~~~
hughw
I think, a lot. Here's a nifty little FFT code. Hey FFT's are kind of generic,
right? This one's only 40 lines of C. I'll just copy and paste this one little
function. Nobody'll ever know.

Or maybe nothing so complex as an FFT. Maybe it's a little code for charting.
Who knows. Developer picks it up a snippet off the net somewhere, and it
appears in your code base.

Then there's "derived works". Developer uses some working code snippet as a
starting point, transforms it, specializes it, does a lot of work to it, but
it's still derived work. I don't think developers think of it as plagiarism.
Just "freedom". ;) But developers don't always protect the best interests of
the company.

~~~
burgerbrain
Copying code is never an accident. It is always on purpose, whether done in
ignorance or not.

~~~
rbanffy
Labeling C and V with "copy" and "paste" may have made such accidents
easier...

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tzs
Bare licenses (e.g., a license that is not really a contract) are revokable.
If Groklaw and Moblen are right, the copyright owner of GPLv2 code can un-GPL
the code. This is covered in Rosen's book on open source licensing, and is one
of the reasons he recommends making sure your software licenses are in fact
contracts.

~~~
wnoise
In such a case promissory estoppel would be a very good defense. Distributing
your work under the GPL is a strong indication that you intend others to build
on it, and their reliance on this is reasonable.

~~~
tzs
In which case you've essentially got a contract, with promissory estoppel
serving as a substitute for consideration.

It's interesting that if one searches, in either law textbooks or in the case
law, there just isn't much that makes a distinction between licenses and
contracts outside of real property law, where they are usually talking about
bare licenses. In almost all other contexts, the terms are largely used
interchangeably, although it seems license is more likely to be used when it
is a one to many arrangement (e.g., one party is making essentially the same
contract with numerous other parties) and contract is more likely when it is
one to one.

------
Jach
Yeah, it's annoying if I'm installing something and the installer treats the
GPL (or MITL) as a EULA. I don't have to accept/agree to the terms to use it.

~~~
caf
You _do_ require a license from the copyright owner to use the software. The
installer is just informing you of one such license that is available to you,
and the conditions of that license. It is also usually the _only_ such
license, unless you have negotiated separately with the copyright owner.

~~~
nitrogen
This is one point over which there is some controversy. I would argue that a
copyright owner merely distributing software gives one the right to use that
software as it was intended, just as distributing a book gives a recipient the
right to read it. A license can only restrict that right, or grant additional
rights one would not have under copyright.

The GPLv3 preemptively deals with potential counterarguments to this point of
view by explicitly affirming the right to use the software, but using
_reductio ad absurdum_ , it seems ridiculous to be able to distribute a work
under the protection of copyright law without implicitly giving the lawful
recipients of the work the ability to use it as intended.

~~~
caf
There are plenty of examples of commercial software that is distributed by the
copyright owner free-of-charge, but requests agreement to a conditional
license during the installation process.

I believe that in the US, this relies on a court ruling (sorry, no cite) that
as the use of software inherently requires making a copy of it, such use is a
copy right. This is unlike the case of a book or a painting.

~~~
nitrogen
There are also examples of commercial software distributed free of charge with
no license agreement whatsoever. I sincerely hope that the decision that using
software is a "copy" right not implicitly granted by its distribution is
overturned, as the notion is truly ludicrous.

That doesn't necessarily mean that EULAs would be unenforcable; one could
still argue that the license page of the installer is an effective access
control mechanism between the user and the software, possibly invoking some
twisted interpretation of the DMCA.

...and I hate that I feel like I have to put this, but as I mentioned
elsewhere, IANAL.

