GPL Issue

dtemeles at dtemeles at
Tue Sep 21 20:27:20 UTC 2010

A point for discussion/clarification stated as an argument on  
something Cindy raised ...

Quoting Cinly Ooi <cinly.ooi at>:


> There is no get around it. It is a leave it or take it situation. Especially
> true since GPL claims it is a copyright license subjected to copyright law,
> not EULA which is subjected to contract laws.

I defy anyone to provide a US-based statutory reference or court case  
that stands for the proposition that there is such a beast as a  
"copyright license" that is not by definition a contract subject to  
state law.  The "bare license" theory as presented by Mr. Moglen and  
the FSF is a fiction.  Note how neither he nor anyone else at FSF has  
ever cited a copyright case or statute in support of the "bare  
license" argument.  They simply raise a hunting example (that, by the  
way, may not even be an accurate recitation of the concept in the  
terms of real property law).  The "bare license" peddlars wholly  
ignore the fact that the patent, copyright and trademark acts  
specifically designate that all patents, copyrights and trademarks  
have the characteristics of personal property, not real property.  The  
hunting license example is therefore inapt.

So, why the lack of citations to case or statutory law?  There is no  
such thing as a "bare license" in copyright law.  Under patent law,  
the courts have used the term "bare license" to reference a  
non-exclusive patent license - i.e., an agreement not to sue the  
licensee for use in accordance with the terms of the license agreement  
(or in other words, a contract that is subject to state law).  None of  
these courts, per my research, have ever suggested that there is a  
license that is not also a contract.

Software licenses are by their very nature an agreement between the  
licensor and licensee.  In other words, they are a contract. There is  
nothing magic about open source licenses vs. proprietary licenses.   
Both grant rights to use code subject to the terms of the license.   
Both are agreements.  Both are subject to enforcement under state  
contract law.

Use beyond the terms of a license, proprietary or open source, can in  
many circumstances be deemed copyright infringement.  This is an  
entirely different cause of action than a breach of contract claim  
based upon a copyright license.  There is some confusion within and  
between the Circuits on the dividing line that distinguishes when a  
cause of action will stand for infringement vs. breach of contract  
when the licensee obtained the software pursuant to a license  
agreement.  Hopefully, a case will arise in the next several years  
that the Supreme Court can take up to resolve the issue.

Why is the contract v. "bare license" issue relevant, you might ask?   
I suggest that most open source licenses fail to address enforcement  
in a practical way.  The open source community cannot continue to hang  
its hat on the unicorn of the "bare license" in the hope that it can  
use the hammer of infringement remedies if/when a license must be  
enforced against a party who breaches the terms of the license.  We  
should instead develop more realistic contract-based remedies that  
address core enforceability issues in a manner that matches the  
reality of open source development. Let's start with a simple issue  
(tongue in cheek) that should be addressed - who actually has the  
right to enforce a license in the typical open source project that has  
potentially dozens or hundreds of contributors?  Who is entitled to  
damages?  (the same questions arise in the infringement context as  
well, but we'll save that for another day).

IAAL, but I am not your lawyer and this is not legal advice.

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