How To Break The GPL - Copyright versus Contract

Rod Dixon, J.D., LL.M. rod at
Fri Mar 10 03:31:40 UTC 2000

> -----Original Message-----
> From: Dennis E. Hamilton [mailto:infonuovo at]
> Sent: Thursday, March 09, 2000 6:45 PM
> To: rod at
> Cc: Open-Source License Discussion
> Subject: RE: How To Break The GPL - Copyright versus Contract
> My apologies for not being clear.  That is all I meant by
> speaking of EULAs.
> They are for purposes other than what is (thought to be) dealt with solely
> by copyright.
The case that I posted, The Pro CD case, is a federal appeals court case
that is viewed by almost all lawyers practicing in this area of law as
clearly establishing a court's willingness to view EULAs AS ENFORCEABLE
energized the movement (UCITA) to declare ALL software licenses as
enforceable contracts under certain conditions (including clickwrap
licenses). Virginia is the first state to pass UCITA and many more are
currently considering the legislation (this is not to say that there are not
dissenting states. New Jersey is one and I believe Iowa is another).
Nonetheless, once a few states join Virginia, UCITA will become a valuable
tool for the Open Source movement as well as e-commerce in general. You
might say that to some extent copyright will be displaced and contracts will
become the real legal tool to enforce conditions on how one uses your
software after it is downloaded. Controversial? You bet! Implausible? Not

> However, my sense of the GPL is that the Free Software Foundation
> is relying
> only on Copyright for the GPL, and that there is nothing but a conditional
> (non-exclusive and royalty free) license of copyright conveyed in the GPL
> (apart from the "no warranty" aspects).  It is, after all, touted as the
> "copyleft" agreement.

You are correct. Of course, most software is sold this way today. Or, to be
more precise, software "is not sold, it is licensed." This distinction is
made to "protect" the interests of the copyright holder.

> I guess here it is a matter of asking the FSF whether they see
> themselves as
> having accomplished anything else, since when we employ the GPL
> we appear to
> be assigning copyright to the FSF.

Hmm... Not sure what you mean here. It sounds like you are pointing out one
of the arguments in the debates going on concerning the legal status of the
GPL's copyleft provision. If so, the FSF position would be that they own the
copyright interest and THEY are assigning YOU a non-excusive copyright
interest to make derivative works under the terms and conditions of the GPL.
This is a critical distinction because the GPL would have a dubious legal
status, if the argument were reversed or put in the terms you raised. (I
think there are instances that may fit your version of the facts.)
> How do you see state contract law(s) applying to the GPL?
See above. The GPL IS a contract. Calling it a license simply describes the
type of contract it is. some people get confused and believe licenses are
always required when copyright interests are at stake. This is not true.
Copyright and contracts are not necessarily intertwined. The software
industry loves licenses (in part, this may be due to the fact that bits are
easily copied). The publishing industry, by contrast, seems to prefer to do
business on a handshake, no license. The interesting thing is that both
industries produce income by selling copyright interests. (Unfortunately,
the digital age is pushing everyone toward licensing systems in some
alarming ways).
> How do
> you see it
> working outside of U.S. jurisdiction?
If your question is can a copyright holder enforce a contract within the
U.S., if the defendant resides elsewhere? The answer is yes, generally, but
it depends on a complex web of issues of personal jurisdiction.
>  Hmm, as I recall, the GPL doesn't
> even state an applicable jurisdiction, unlike many EULAs and all
> contracts I
> have ever entered into.
These provisions attempt to avoid the complexity I just referred to and to
establish a choice-of-law rule by agreement. The presence of such provisions
are helpful, but not required as far as jurisidiction questions are
> -- Dennis
> -----Original Message-----
> From: Rod Dixon, J.D., LL.M. [mailto:rod at]
> Sent: Sunday, March 05, 2000 09:56
> To: infonuovo at; Ken Arromdee; license-discuss at
> Subject: RE: How To Break The GPL - Direct Functionality versus
> Copyrighted Expression
> This is not entirely correct. EULAs cover interests other than copyright
> interests because the copyright owner desires to set out other limits that
> copyright law does NOT  provide. Copyright law sets out the default rules
> and unless you want to assign your copyright, licenses are not required.
> Copyright holders use licenses to change the default rules or add to them,
> but not to set them; copyright law does that. Is this clear? In
> other words,
> our discussions about the GPL entail at least two bodies of law: 1)federal
> copyright law and 2) state  contract law(s).

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

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