Matthew Flaschen matthew.flaschen at
Wed Jan 17 23:04:46 UTC 2007

Rod Dixon wrote:
> In my opinion, whether software licenses are governed by contract law or copyright law is not as "controversial" an issue as it is a 
> complicated and misunderstood matter. Semantics aside, in a
fundamental or basic sense a copyright license is a contractual legal
tool. I
> do not read FSF's arguments to be in contradistinction of this basic

Denying a controversy does not make it any less real.  I won't argue
with you about the topic itself.  However, I will note that the FSF
explicitly rejects the idea that the GPL relies on contract law;
moreover, they assert that courts have agreed.  They state

"Put quite simply, if you don't accept the terms of the GPL, then you
have no rights to the copyrighted works it covers. What is there left to
test? *The GPL is a software license, it is not a contract.* It gives
permissions from the copyright holder. You don't want to accept those
permissions? End of discussion."

On another occasion, Eben Moglen stated (

"A license is a unilateral permission to use someone else's property.
The traditional example given in the first-year law school Property
course is an invitation to come to dinner at my house. If, when you
cross my threshold, I sue you for trespass, you plead my 'license,' that
is, my unilateral permission to enter on and use my property.

A contract, on the other hand, is an exchange of obligations, either of
promises for promises or of promises of future performance for present
performance or payment. The idea that 'licenses' to use patents or
copyrights must be contracts is an artifact of twentieth-century
practice, in which licensors offered an exchange of promises with users:
'We will give you a copy of our copyrighted work,' in essence, 'if you
pay us and promise to enter into certain obligations concerning the work.'"

Their stance is clear, and it is a "contradistinction" of the idea of
the GPL as a contract.  Again, whether they are correct is debatable,
but don't deny the controversy.

Matthew Flaschen

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