How To Break The GPL

David Johnson arandir at
Sat Mar 4 04:55:36 UTC 2000

On Fri, 03 Mar 2000, John Cowan wrote:

> 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.

Rod brought this up before, and since then something occurred to me. A contract
is an agreement, regardless of whether it is written out in legalese or merely
a handshake. And agreements can only occur between two people. But the GPL is
not an agreement! It doesn't matter at all if it says so or not. Contracts are
analogous to conversations while licenses are analogous to speeches. In
addition, I know of every contract I have made, or I can look them up if my
memory is shaky. But there is no way at all a licensor can know who is or who is
not licensed. Because of this, a license is not a contract and can only grant
permissions, it can't take away pre-existing rights. An author can't impose
restrictions on code that is not his. If Alice's work is not a derivitive under
copyright, then the GPL does not apply to her.

Of course, the courts can also disagree with me...

David Johnson...

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