verdy_p at wanadoo.fr
Thu Jan 18 04:14:15 UTC 2007
From: "Rod Dixon, J.D., LL.M." <roddixon at cyberspaces.org>
> 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
>> 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."
Such discussion seems strange, and in fact it's probably a US-specific situation. Here in France, a software licence is unambiguously a contract. And the GPL is a contract, even if an explicit acceptation is not required by the GPL.
The software under GPL has a requirement: it MUST display a copyright notice, so it also falls into the category of copyright laws (and in France, also under the author's right, according to international conventions).
The implicit acceptation becomes effective exactly because of the copyright that each GPL software MUST assign, and because author's right is immediately protected under copyright laws. It is even stronger now, with the new DADVI law which is now effective and gives much more power to authors and to all intellectual property right owners; violating authors rights is now a criminal offense, so violating the GPLed software copyright is clearly illegal.
As the GPL licence is the only document that grants to users additional rights, the terms must be accepted. It is legal because it is a *balanced* contract: the GPL grants both rights *and* obligations; if you want the additional rights, then you are also bound to the additional obligations.
If you don't accept the licence, then you don't get any of the additional rights that the GPL provides, so it remains the copyright statement of the GPL software, which MUST be respected in all cases (meaning that GPL authors can legally forbid you any right to use or publish their work, or to change the copyright notice).
May be you don't like it, but the GPL is dual, and it's why it is effectice at protecting authors from abusive claims by third-parties; the GPL licence without the copyright is non-sense for any software. It is the copyright which gives the effective protection to authors, internationally. And using rights that are unambiguously protected and reserved to authors (notably their right to control the publication), without entering explicitly into an agreement with them is a clear violation of law.
So if you don't accept the licence, any other use is illegal, because you need an agreement with the authors. The only way to avoid this licence but still use the software legally, is then to contact the authors to negociate other licencing terms.
The other way is to use an alternative licence that some GPL-ed software authors may be also providing (for example a Apache-like licence), which lets users choose which licence to use. But in France, the licence is still a binding contract, so one can only choose one contract that does not violate the terms of the other contract. If there are contradictions between two licences, then users have to make the choice and may be required to cancel all their rights and obligations linked to the second licence, because using the alternative terms would violate the terms of the GPL licence, and so the GPL explicitly states what is happening in such case of violation of terms.
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