GPL Issue

Smith, McCoy mccoy.smith at
Wed Sep 22 02:36:39 UTC 2010

Decision is here: 
Pretty leading case and one that was much discussed during the lead up to the decision. Mark Radcliffe did a lot of background work around this one and has posted extensively upon it, e.g.:
I think therefore the challenge has been met.

-----Original Message-----
From: Ben Tilly [mailto:btilly at] 
Sent: Tuesday, September 21, 2010 5:44 PM
To: dtemeles at
Cc: license-discuss at
Subject: Re: GPL Issue

On Tue, Sep 21, 2010 at 1:27 PM,  <dtemeles at> wrote:
> 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.

Jacobsen v Katzer 535 F.3d 1373 (Fed Cir. 2008).

The court ruled that the terms of the Artistic License did indeed give
Jacobsen standing to seek enforcement of copyright damages for
Katzer's violation of the license terms rather than suing for
violation of contract.  (Which was kind of important since the
district court had already ruled that Jacobsen had no damages that he
could sue for under contract law.)

To the best of my knowledge this is the only such case, but it is an
important one.  The reasoning for the copyright claim exactly
parallels all other copyleft licenses.  And the Artistic is
particularly poorly written.  So if it works for the Artistic license,
then I'm confident that it would work for the GPL as well.

IANAL, I may misunderstand key details of the case, etc.  But look it
up and form your own opinion.

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