How To Break The GPL

John Cowan jcowan at
Fri Mar 3 21:51:03 UTC 2000

"Rod Dixon, J.D., LL.M." wrote:

> 1. The issue raised may be breach of the terms of a license (Trent's GPL)
> rather than a copyright infringement.

Ah, but then you raise this question:  If the GPL is an ordinary
contract, where's the consideration?  Shrink-wrap contracts are on
shaky ground (nobody but Microsoft, AFAIK, has ever been able to
enforce one in court), and since neither money nor anything else
changes hands when Alice downloads Trent's library, it's hard to conclude
prima facie that a contract exists.

This doesn't make the GPL and other free software "licenses" useless.
They can be viewed as conditional non-exclusive copyright transfers:
"I give all of you part of my copyright rights-bundle on condition you do X."

But if
the rights on which Alice and Bob rely are part of the dominion of
the copy's owner, rather than the copyright owner, the GPL doesn't control.

> 2. Alice is breaching the terms of the GPL. There is no doubt that Trent has
> a remedy. Moreover, he could extract a royalty fee from Alice, if he so
> desired.

He has a remedy if he has a contract, but does he?


Schlingt dreifach einen Kreis vom dies! || John Cowan <jcowan at>
Schliesst euer Aug vor heiliger Schau,  ||
Denn er genoss vom Honig-Tau,           ||
Und trank die Milch vom Paradies.            -- Coleridge (tr. Politzer)

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