How To Break The GPL

Rod Dixon, J.D., LL.M. rod at
Fri Mar 3 21:55:28 UTC 2000

Good points. There is a federal court of appeals case that has already
addressed the question on shrink wrap. Yes, they are enforceable. More
important, click wraps will be enforceable in most states soon as states
begin to enact a uniform law called UCITA (10 states are considering UCITA

Unfortunately, the battle over challenging click wraps and shrink wraps has
already been lost.

Rod Dixon, J.D., LL.M.
rod at

> -----Original Message-----
> From: cowan at
> [mailto:cowan at]On Behalf Of John Cowan
> Sent: Friday, March 03, 2000 4:51 PM
> To: license-discuss at
> Subject: Re: How To Break The GPL
> "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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