Rod Dixon, J.D., LL.M. roddixon at
Thu Jan 18 02:28:04 UTC 2007

On Jan 17, 2007, at 6:04 PM, Matthew Flaschen wrote:

> 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
> point.
> 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."

I understand the FSF to be asserting that the GPL is merely a  
repackage of copyright interests. Of course, the GPL does repackage  
copyright interests in the form of a license. No issue there. What is  
more complex is determining whether the GPL includes terms that, if  
violated, constitute a breach of the license, but not copyright  
infringement.  In other words, the GPL is enforceable by copyright  
AND contract law because it is a copyright license that is  
contractual in form. The distinction between an IP claim and a  
contractual claim is what Justice Thomas alludes to in MedImmune v.  
Genetech.  It bears noting that the distribution of software could be  
accomplished without a license at all; if an end-user violated the  
copyright, the copyright holder would have a claim against the end- 
user, notwithstanding the absence of  a license.
> On another occasion, Eben Moglen stated ( 
> 61292/):
> "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.

This may be so or you could argue that an invitation is an offer and  
the invited guest accepted by performance. I do not know where this  
gets us on the real issue of whether the terms of the GPL are  
enforceable by copyright and contract law.
> 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

To avoid slipping into semantic nonsense, I was careful to say that  
the GPL is contractual.  It is incontrovertible that the GPL contains  
terms that do not come within the copyright interests of  
distribution, reproduction, display, performance, or the preparation  
of derivative works (e.g., three-year term period of written of  
source code).   My focus was on the legal claim for violating the  
terms of a license and on its enforcement.

Rod Dixon

More information about the License-discuss mailing list