For those interested in the question of whether or not the General Public License is a license or a contract, and how enforceable it is, I was pointed earlier today at this very nice little paper1 by Duke Law prof Sapna Kumar. Also gives a fairly good background on the license, what it does, and what it means. This might be good for my law school classmates who were mystified, but still curious, when we glossed over the GPL on the very last day of IP law last semester.
For those in the triangle, Prof. Kumar will be speaking tomorrow night at Trilug. Come see her explain the GPL v3, and see me bite my tongue and try not to monopolize the Q&A. ;)
[Ed. not tonight, next Thursday, the 14th. Doh!]
- well, little by law standards- 36 pages [↩]
Sorry about the comment pollution, but your “Contact Me” link doesn’t work. I’m looking to upgrade my host. How happy have you been with RIMU? Do you use their Dallas or NY site?
“Because it gives users a limited right to use software at no charge (The licensor may charge for the cost of the source code’s medium of distribution).”
I’ve read the whole paper and, but for the above, it appears solid.
But, the above is a worryingly shaky foundation – especially if Prof Kumar bases so much argument on the absence of consideration – not that it matters. I don’t think the GPL is a contract either – until/if the licensee wishes to assert acceptance of it as such.
Remember, the GPL has no problem about vendors selling copies of GPL licensed software at any price they like (completely unrelated to the cost of the medium), at any amount of profit.
The only time no charge is stipulated is for the privilege of making copies or derivatives.
[…] For those in the triangle, Prof. Kumar will be speaking tomorrow night at Trilug. Come see her explain the GPL v3, and see me bite my tongue and try not to monopolize the Q&A. ;) well, little by law standards- 36 pages [↩]Syndicated 2007-06-07 02:06:06 from Luis Villa’s Blog […]
Prof. Kumar’s concern with treating the GPL as a license is that licenses can be revoked, even if the license text itself says otherwise (at least this is what he says). (What about estoppel, or the case of company that has built its business based on trusting the word of an organization that then revokes the license?).
However, at least for FSF-owned GPL code, this isn’t a concern, as far as I can tell, because of the contracts that the FSF signs with contributors. The contract obliges the FSF to make the code available on free software terms (though as I recall the language is vague enough to allow the FSF the freedom to change the specifics of the terms, e.g. relicense from GPLv2 to GPLv3).
Crosbie Fitch wrote:
“I don’t think the GPL is a contract either – until/if the licensee wishes to assert acceptance of it as such.”
I may not have made it clear enough in the paper, but I agree with your point. It is quite possible that there can exist a meeting of minds between the licensor and licensee. My argument is that it isn’t always a contract, just that as a general rule, it isn’t a contract without showing a meeting of minds.
I think one thing I would change in the paper if I could would be to note that the distinction I’m drawing might not be strong enough for a judge to care. The GPL looks similar to a contract, so it might be temping for a judge to declare it as one to ensure enforceability.
[…] 8, 2007 07:04 PM June 07, 2007 Enforcing the GPL…contract, license, or promissory estoppel?Luis Villa pointed me to a paper that I had already downloaded, but had yet to read. At his prompting, I went through it […]
[…] the means) generally held.Att By Matt Asay Print | Add a comment document.writeln(''); Luis Villa pointed me to a paper that I had already downloaded, but had yet to read. At his prompting, I went through it […]