GPL Issue

dtemeles at dtemeles at
Wed Sep 22 04:22:36 UTC 2010


Thank you for the thoughtful replies.

I am aware of the Jacobsen case.  Jacobsen supports my point rather  
than contradicting it.  The Federal Circuit reviewed California and  
Ninth Circuit law contract law regarding conditions precedent, not  
copyright law, in determining that the restrictions in the Artistic  
License are conditions precedent, and therefore Katzer's failure to  
follow the conditions meant that Katzer was using the code outside the  
scope of the license agreement(i.e., it was an unlicensed  
infringement).  This means that open source licenses will be  
interpreted through the lens of a state by state, circuit by circuit  
analysis of contract law - not a "bare license" analysis that  
automagically exempts open source licenses from ordinary contract law  
principles.  In fact the Court goes to great lengths to point out that  
the attribution and modification transparency requirements of the  
Artistic License constitute "consideration" - a foundational concept  
of contract law, not copyright law.

The Federal Circuit could have reached a different result had the case  
originated in another circuit or had Katzer's use been subject to the  
laws of another state.  In fact, the Court could have reached a  
different result if Katzer had breached the license in a different  
manner.  As the Court's analysis makes clear, even under 9th Circuit  
and CA law, not all restrictions are conditions precedent limiting the  
scope of use.  Therefore not all breaches of a license will be deemed  
an infringement.

My points still stand:

1. In the US there is no such thing as a bare license which exists  
outside of contract law.  All software licenses, whether open source  
or proprietary, are contracts and will be subject to a state by state,  
circuit by circuit, provision by provision, breach by breach analysis.  
  In other words, we have a complete lack of certainty on what will  
happen with a given license and a given use in a given court.

2. There is a split among the Circuits on where the dividing line is  
between a use that is merely a breach of a license agreement (and  
therefore simply a breach of contract action), vs. a use outside the  
scope of the license agreement constituting infringement.  Part of  
this difference lies in the "common law" of each Circuit being  
different.  A Supreme Court decision could theoretically resolve the  
differences among the circuits but the more I think about it, this is  
rather unlikely and in any event the variation between the state  
contract laws would continue unabated.

3.  The open source community would be well served if we focus more  
attention on developing sound enforcement provisions and mechanisms so  
that the licensors can seek and obtain relevant redress against  
infringers regardless of whether the court du jour determines that the  
use is a breach of the license (breach of contract), or a use outside  
the scope of the license (copyright infringement).

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

Very truly yours,


Quoting "Smith, McCoy" <mccoy.smith at>:

> 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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