How To Break The GPL

Rod Dixon, J.D., LL.M. rod at
Sun Mar 5 16:34:40 UTC 2000

> -----Original Message-----
> From: David Johnson [mailto:arandir at]
> Sent: Friday, March 03, 2000 11:56 PM
> To: John Cowan; license-discuss at
> Subject: Re: How To Break The GPL
> 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...

Well, the 7th Circuit already has disagreed with you and a Uniform law that
many states are about to pass disagrees as well.


ARGUED MAY 23, 1996--DECIDED JUNE 20, 1996

"EASTERBROOK, Circuit Judge. Must buyers of computer software obey the terms
of shrinkwrap licenses? The district court held not, for two reasons: first,
they are not contracts because the licenses are inside the box rather than
printed on the outside; second, federal law forbids enforcement even if the
licenses are contracts. 908 F. Supp. 640 (W.D. Wis. 1996). The parties and
numerous amici curiae have briefed many other issues, but these are the only
two that matter--and we disagree with the district judge's conclusion on
each. Shrinkwrap licenses are enforceable unless their terms are
objectionable on grounds applicable to contracts in general (for example, if
they violate a rule of positive law, or if they are un- conscionable).
Because no one argues that the terms of the license at issue here are
troublesome, we remand with instructions to enter judgment for the

rod at

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