I understand the issue for the specific lawsuit mentioned. But I didn’t follow why there was a preexisting preference for GPL to be a license and not a contract.
Anyone know what the perceived benefit was for arguing that GPL is a license?
My third hand and long after the fact impression is that the idea was that while a contract restricts the users rights, a license only grants more rights. So by arguing that it was a license they were trying to argue “this is strictly beneficial (more liberal in user rights) compared to proprietary software”.
I believe the key thing in the USA is that a contract must provide something to both parties. This is why a bunch of contracts have the weird nominal dollar thing.
The GPL does not provide anything to the copyright owner. The recipient of the GPL’d work receives the right to use the work. Customers of the recipient receive a set of rights. The author receives nothing as a direct result of the GPL (they may subsequently get code back if someone downstream happens to share it, but the GPL does not require this).
It’s quite surprising to see the defendant arguing that this should be treated as copyright infringement because the statutory penalties are much higher in that case, especially with the precedent that the RIAA set that each copy distributed counts as a separate incident and triggers the punitive damages again.
It’s quite surprising to see the defendant arguing that this should be treated as copyright infringement because the statutory penalties are much higher in that case, especially with the precedent that the RIAA set that each copy distributed counts as a separate incident and triggers the punitive damages again.
My suspicion (don’t quote me on this) is that a copyright claim would have to go through federal court, which lacks California’s rule allowing the SFC to sue as a third-party beneficiary.
Anyone know what the perceived benefit was for arguing that GPL is a license?
It has to do with standing: This is a contract-court.
Vizio wants to argue it is a license (and so it deals with e.g. copyright infringement) in the legal sense of the word so that this court cannot hear the case.
As mentioned, in a license law, the SFC has no standing as they are a third party. A concept that is not accepted in license court, as the SFC does not represent the copyright owner
Conservancy can represent several of the relevant copyright holders, but they cannot use a copyright case to ask for source code, nor wouud that get them a precedent that all other USA software users also have standing to sue.
Vizio argued that the lawsuit is really a copyright infringement lawsuit, and therefore belongs in federal court, not state court. Painting Conservancy’s legal claim as really about copyright could also help them avoid the whole issue of third-party beneficiaries, a contracts-law concept. So naturally, Vizio’s lawyers went online and dug up a bunch of places where Free Software people, including FSF and Conservancy people, wrote that the GPLs are licenses, not contracts, and that only copyright holders can enforce them
There are actually multiple relevant paragraphs, but this seems the most explicit about the issue
Painting Conservancy’s legal claim as really about copyright could also help them avoid the whole issue of third-party beneficiaries, a contracts-law concept.
which requires a leap of inference to get to “SFC has no standing under license law.” It seems plausible, but it was certainly not mentioned in the article. Are we supposed to know that the contracts-law “third-party beneficiary” concept is the only legal device that could give the SFC standing to sue?
Would it really be that hard for the SFC to find a Linux/bash/glibc contributor to sign on to the suit, if that’s even necessary?
which requires a leap of inference to get to “SFC has no standing under license law.” It seems plausible, but it was certainly not mentioned in the article. Are we supposed to know that the contracts-law “third-party beneficiary” concept is the only legal device that could give the SFC standing to sue?
Again, the article says that, it goes into great detail on the matter. It does not have a single sentence saying “by making this a copyright license case, Vizio is forcing this into federal courts where there is no concept of a third party beneficiary, and so SFC would have no legal standing to bring the case and it would be dismissed.” It does have numerous paragraphs that together make this point. e.g. one paragraph details how contract vs license suits are preempted by federal law, one details how third-party standing differs between contracts and licenses in CA vs federal law, one explains how everything combines to completely remove the SFCs right to sue.
Would it really be that hard for the SFC to find a Linux/bash/glibc contributor to sign on to the suit, if that’s even necessary?
In principle anyone could have done that already. The whole point is SFC wants to do this unilaterally without working with actual authors because that’s more expensive. My not at all a lawyer take is the issue is this:
If SFC has no standing all they can do is provide lawyers. But lawsuits take time and money for the non-lawyer person as well: you have to attend depositions, for which you may have to travel, that can take 10s of hours. So you not only need someone who’s copyright was violated, but they have to have the time and money to be able to handle the case workload. These cases are generally about forcing source code to be released, not extracting monetary damages, so the end result is you are fundamentally out of pocket (you can get compensated for say hotel time, but not for vacation time, etc). e.g. the end result may still be the contributor being out of pocket.
The other side is developers working for companies that contribute to open source (e.g. the ones that might be able to afford the time) are likely not the copyright owners - e.g. for the last 15 or 20 years all my open source code belongs to large corporations, so for that code I would not have standing either. So you actually need to convince the company to be part of the suit not the individual developers there.
Again, the article says that, it goes into great detail on the matter.
I now realize you are not the original person I asked about this, so why are you saying “again”? Did you already say the article says SFC has no standing under license law? I can address the rest of your comment but want to make sure I’m not having an aneurysm. Whats with the “again”?
So the TL;DR (for a law challenged person like me): The GPL is a contract rather than a licence. Apart from technicality about what court can prosecute what case, is there any other implication at large for the world of software? The article make it seems like it is super big, but I’m not really getting it.
Not quite. The emerging upshot is that “It’s a license” and “It’s a contract” aren’t mutually exclusive.
If someone sues you under copyright in some GPL software, but you followed all the GPL’s rules, you can beat the lawsuit by pointing to the GPL. In legal terms, you can plead “license” as a defense to “copyright infringement”. In that sense, “GPL is a license”.
If you break the rules of the GPL, you might get sued under copyright, you might get sued under contract, or you might get sued under both. Forms like the GPLs have various different rules, and there’s some legal uncertainty about what kind of legal claims—copyright or contract—come from breaking which kinds of rules. Whether just copyright or also contract law applies has some important consequences.
The important one in Conservancy’s lawsuit against Vizio is whether people and groups other than the owners of copyright in software can sue under contract for breaking the GPL’s rule about sharing source code. Legally, the rule that potentially lets someone who isn’t the one giving the license or the one who arguably broke its rules is a rule of contract law, not copyright law. So Conservancy and Vizio are fighting about whether breaking that rule can lead to a contract lawsuit or only a copyright lawsuit.
Ah, okay, I think I get it: So if I were to put it in my own word : If a party reuse GPL code, they are exposed to lawsuit related to contract law, in addition to lawsuit related to licensing law. Which mean, in a way, that reusing GPL code expose one to much more legal risk that what was thought previously. Or to put it in more positive term : GPL code imply more legal protection than previously thought, and more people can claim right related to it.
It’s not clear to me that Vizio sells anything that gives users the right to ask for source code. What makes SFC think that they can demand source code? Do the TVs contain any GPLv3+ licensed code?
Tivoization is also largely a myth, since the specific thing TiVo did (not allow their nonfree code to run on a replaced OS) is still allowed under GPLv3 and the thing people who came along later think TiVo did (make it impossible to install new firmware at all, like with some android phones) is not allowed even under GPLv2
the thing people who came along later think TiVo did (make it impossible to install new firmware at all, like with some android phones) is not allowed even under GPLv2
Isn’t it? What part of the GPLv2 (or v3) implies firmware must be replaceable by the user?
GPLv2 specifically requires users be gvien access to all “scripts to control compilation and installation of the executable” which means (unsurprisingly) that users must be able to both compile the source code, and install it on the device, not just study it.
GPLv2 specifically requires users be gvien access to all “scripts to control compilation and installation of the executable” which means (unsurprisingly) that users must be able to both compile the source code, and install it on the device, not just study it.
If that was true, then why would the GPLv3’s TiVo clause exist?
Obviously this is still making its way through the courts, but it is the opinion of many legal experts (such as those involved in these cases) that this covers the ability to install the software. So that may be via signing keys, via an option to disable signature checking, via a “write protect screw” as on some chromebooks, many avenues available for compliance, but if the end user cannot install their build on the device then they do not have all of what they need to “control installation” and thus they do not have what is required by the GPL. Hopefully we have a definitive ruling on this by a court in the next couple years.
Specifically, Vizio is using Linux’s source code and other open-source software, such as BusyBox, U-Boot, bash, gawk, tar, Glibc, and FFmpegis, in its SmartCast OS TV firmware.
If the GPL is a contract, both parties must get something and the code author gets nothing from the GPL so it can’t be a contract.
If the GPL is a license, only the licenser can sue for damages (not a 3rd party). And this court can’t hear the case because it only deals with contracts. Contracts are State law, Copyright is Federal law.
It seems like the the Conservancy lawyers say: Website/internet opinions that GPL is a license and not a contract, are not lawyer or judges opinions, therefore not relevant for the lawsuit
But then the Conservancy lawyers also argue that the community (the same that believes GPL is a license, not a contract), can sue Vizio for violation of contract.
Either way, “license, not contract” now indisputably stands between Conservancy and a potential legal ruling that anyone in the United States who wants GPL source code can sue for it, contributor or not. The old mantra’s gotta go, even as it still rings in our ears and echoes down deep caverns of the Web.
The two statements aren’t in-conflict, but require context to properly understand. I’m not so certain this article explains it very well.
This court can hear about contracts. Vizio says “a bunch of non-lawyers” think this is a “license not a contract” so this court cannot hear this case; Conservancy agrees with the first part, but says “those same bunch of non-lawyers” think this court can hear this case (which is what the second statement is).
The main thing is that “the contract” they are talking about isn’t clearly written down, and the reason it isn’t clear is because “a bunch of non-lawyers” did the writing, but like any verbal contract, all a contract really requires is agreement.
So Conservancy argues: If the terms are understood, and Vizio acts in accordance to those terms, then Vizio automatically enters “into contact” with everyone who could be harmed by Vizio failing to implement those terms. This is a contract, and so therefore, “this court” can hear the case and implement a cure.
Vizio wants this to be a “license”, because if it’s a license, we just hear Conservancy’s argument, but it’s moot, because this court can’t hear it, and we won’t need to hear Vizio explain what they think their rights are.
The Judge (in California) is elected, so they need to see press like this to understand if they make a mistake, the ramifications will be huge. They probably would be: If they refuse to hear the case, and Conservancy can’t get another court to hear it, then companies are probably going to start ignoring other files called “license” and this Judge will get blamed.
They probably would be: If they refuse to hear the case, and Conservancy can’t get another court to hear it, then companies are probably going to start ignoring other files called “license” and this Judge will get blamed.
If he gets blamed, he will also get credit from the concentrations of wealth that want him to rule that way.
Note that it is not that simple. Concentration of wealth also knows that killing the open source golden goose would be highlu detrimental and costly to their own wealth concentration machinery.
Sure. 75% to 90% of their code is open source from external coders. And that is the case across the industry. We actually have numbers about this. Killing the thing that attract maintainers to share the code they write would … Basically kill the software industry at this point.
Note that this is not only about copyleft. There are other things in licenses that you want to enforce. And in general if you start using code with licence and not respecting the terms, the fact it is copyleft does not change the fact we cannot trust you for non copyleft one.
It’s not that simple. The argument for the GPL being a contract and everyone else being third-party beneficiaries doesn’t extend to permissive licenses, so I don’t think this ruling will have much bearing on that.
Regardless, are you then saying that maintainers’/developers’ willingness to share code depends on third parties being able to enforce the attribution requirements of permissive licenses?
I am saying that anything that will make maintaineds feel like the opensource/free “social contract” is abused far more than it already is will make a lot of them rethink their involvement yes. We already are having a pretty bad burnout problem in that domain, which is starting to real scare governments and corporations at the edge.
Wait why say “yes” if that’s not what I asked. Does that mean “yes, maintainers’/developers’ willingness to share code depends on third parties being able to enforce attribution requirements of permissive licenses?”
I mean yes, because otherwise they have to do it themselves, which noone has money and time for. The US court system is based on third parties enforcing laws for you
Surely 75-90% of code used by commercial entities is not copyleft licensed, right? I would be surprised if this was the case. My understanding is that companies strongly prefer permissively licensed OSS.
Not a lawyer, but I always thought of MIT license as a license, and GPL as a contract. The GPL is like a nation’s constitution, a contract engineered to grant and protect freedom.
The legal idea is that “license” and “contract” aren’t mutually exclusive categories. Loose OOP analogy: license and contracts are interfaces that a deal can implement, not different, single-inheritance parent classes.
Legally, “license” is a “defense” to copyright infringement. If you get sued under copyright, you can beat the case by pointing to evidence you had permission to do what you did. Legally, “contract” means either side, and potentially other people who weren’t part of the agreement but were meant to be benefited by it, can sue to enforce the terms of the deal. That’s different than suing for copyright infringement, which is about someone else copying, sharing, and doing other specific things with a creative work that the law gives you ownership of.
MIT sets a lot fewer rules than the GPLs. But there is a requirement to keep copyright and license notices on the software. There is also a big chunk of disclaimer language at the end, which responds to some defaults in contract law.
But uhhh what? It’s a contract. There’s an offer, acceptance, and consideration. Calling a duck a squid doesn’t stop courts declaring it quacks. MIT license is a contract but I’m not a lawyer and don’t see the consideration in it’s terms, just offer and acceptance, so “license” it is. Don’t ask me to explain what a license is - I don’t know, I just know it gives you permission to do something.
Not a lawyer, so I don’t know to what extent MIT license terms could provide consideration. Maybe not suing your upstream. Derivative works being shared in return definitely is consideration, though.
Derivative works being shared in return definitely is consideration, though
I disagree. It would be if the GPL had a condition that you must share derived works with upstream, but it requires only that you share them downstream. This means that there is nothing that upstream receives as a result of the license (they may receive the changes because it’s cheaper to send them upstream than maintain a fork, but that’s an orthogonal concern).
Yes, it does; consideration must be something valuable, although it doesn’t have to be material.
In this situation, the typical understanding is that, absent the GPL, there is no permission given for any usage of the code; all rights are reserved according to standard copyright law.
I am not a lawyer, but it feels like a big stretch of that definition to view a constraint on sublicensing (you may sublicense only if you impose the same terms on those that you sublicense to) as a consideration.
I think the advertisement of the licensee as a user of the GPL’d software as well as the advertisement of the availability of the source code could be argued with a straight face to be of value to the publisher. Notoriety is of value after all. Both celebrities and companies have been award damages for harm to their reputation.
edit: it occurs to me now that you may have been pointing to the conditional nature of the GPL. i.e. if the licensee does not distribute then the publisher would not receive any notoriety. However there are a lot of contracts like this in other legal areas such as real estate, mergers, and finance.
This is probably complicated in the US, because moral rights are state law not Federal, but in Europe you have the right to demand attribution does not rely on a contract or explicit license.
I’m not sure that it is, because you’re not promising to release changes, you’re agreeing to be bound by conditions if you distribute and impose those conditions on everyone that you distribute to. You’re receiving a set of rights that’s less than unlimited redistribution, but if I give you £10 you’re not giving me £5 simply because I didn’t give you £15.
The consideration must have some value to the contracting party who is offering the product or service. It’s hard to imagine that any reasonable person would agree that a nebulous possible future modification has any value. For example, what is the estimate of the value? If you are a public company and you go to your shareholders and try to convince them of this value, are you likely to be laughed out of the room? (Yes.)
To put it another way–if you can claim that this promise is consideration, then you can also claim that a promise to, in the future, possibly write and publish a technical article is consideration in exchange for a good or service offered. Which, again, no reasonable person would agree with that.
Software licenses are not contracts. Otherwise why do you have to accept an EULA (End User License Agreement) in order to use software installed on a phone that you have already bought? I.e. you executed a contract with the party who sold you the phone, you paid them the consideration in exchange for the phone, and now you still need to accept a license or else you can’t actually use the phone. Clearly, the license is separate from the contract.
That example makes sense because phones don’t ship with an Android CD and license key. Or I suppose an Android SD card would make more sense, assuming the phone has a slot for one of those.
Because the money you paid was for the hardware. The EULA is granting you permission to run certain software on that hardware. If you don’t accept it, you can still use the hardware but you can’t use the software.
It is not the case, legally speaking, that something which grants you certain rights/permissions to software must be either precisely 100% license and 0% contract or precisely 100% contract and 0% license; it is possible for something to have aspects of both, or to be interpreted differently by different courts or in different situations.
Oh man, this gets complicated because in the US you often don’t actually “own” the hardware in the sense that you can do anything with it. This is part of the reason for the “right to repair” movement. Zod, I love all the complications we as consumers have as a result of capitalism.
You own the hardware. If someone came and physically took it from you, you could report it as theft, for example, and seek to have it returned to your possession. And you can dispose of it as you choose (within the bounds of local laws about things like disposal of batteries and electrical components, of course). And so on – you have the rights normally associated with ownership.
It might be the case that you do not have and cannot easily obtain the tools to reliably disassemble and reassemble the device to a working state, or to replacement parts which will work with the device, but stretching the definition of “ownership” to include a mandate to provide those things is, well, a stretch. Which is one reason why I tend to fight back, hard, against any attempt to make “ownership” synonymous with “easily end-user repairable and manufacturer is required to provide parts and tooling and training in their use on demand”.
The only reliable “contractual components” are “a court rules that it is a contract”.
Naming something a “license”, for example, doesn’t bind a court to finding that it isn’t a contract, any more than starting a brutal dictatorship and calling it the Glorious People’s Democratic Republic of Liberty makes that name accurate.
OK, so where is the court ruling that free software licenses like GPL are contracts? Because in the absence of that, I am inclined to give credence to an actual software licensing lawyer: https://lobste.rs/s/rmhnw9/we_were_wrong_about_gpls#c_qmgu2v
OK, so where is the court ruling that free software licenses like GPL are contracts?
There was one out of France a few years ago that did come to this conclusion. Though the French legal system is quite different than the American one so there’s not much value in that decision here.
The article this whole comment thread is about was written by a lawyer.
As C.S Peirce would say, we have now reached the limits of the “method of authority” as a dispute resolver – two authorities disagree. Sooner or later we must move on to the “method of science” – in this case, of performing experiments in the real world (court cases, rather than blog posts or essays or wiki pages) and seeing how they turn out. But I suggest you keep your mind open to the possibility that the result might be, as I said originally, that the answer will be “not 100% license and also not 100% contract but a mix of both”.
Like I said, in the absence of a court ruling, I will look at other sources. And yes, I will look at authoritative sources first, because usually they’re authoritative for a reason. If we are being scientific, then statistically an authoritative source is more likely to know something relevant about the matter.
The answer may be ‘it’s a mix of both’, but a specific one needs to be chosen for the purposes of application to this specific case. And that’s what I’m interested in.
There is no “authoritative source”, though. There are different lawyers with different positions, and you’re just sort of arbitrarily picking one to declare as “authoritative”. On what grounds?
I thought we were talking about authoritative sources because your argument was that we were debating by ‘method of authority’. It’s a matter of who you consider more authoritative, I guess, and I consider Eben Moglen, a free software lawyer and professor, to be pretty authoritative on it. OP less so not so much because I don’t know them, but more because I can’t make heads or tails out of their point.
OP is an attorney well known for writing about software licensing and open source.
Again it seems difficult to find grounds to say “I choose this lawyer as authoritative over all others”. At that point it’s less “authoritative” and more “arbitrary”.
An EULA is a contract. It forms an offer (the software), acceptance (your use of the software), and consideration (the terms of the agreement - access to the software in return for following the terms of the agreement).
Unlike EULAs, free software licenses do not work as contractual extensions to existing legislation. No agreement between parties is ever held, because a copyright license is simply a declaration of permissions on something that otherwise would be disallowed by default under copyright law.[5]
The reference [5]:
Eben Moglen (10 Sep 2001). “Enforcing the GNU GPL”. gnu.org. Free Software Foundation, Inc. Archived from the original on 26 April 2013. Retrieved 20 May 2013. Licenses are not contracts: the work’s user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn’t have any right to act at all except as the license permits. … [C]ompanies say their software is “licensed” to consumers, but the license contains obligations that copyright law knows nothing about.”
I understand the issue for the specific lawsuit mentioned. But I didn’t follow why there was a preexisting preference for GPL to be a license and not a contract.
Anyone know what the perceived benefit was for arguing that GPL is a license?
My third hand and long after the fact impression is that the idea was that while a contract restricts the users rights, a license only grants more rights. So by arguing that it was a license they were trying to argue “this is strictly beneficial (more liberal in user rights) compared to proprietary software”.
I believe the key thing in the USA is that a contract must provide something to both parties. This is why a bunch of contracts have the weird nominal dollar thing.
The GPL does not provide anything to the copyright owner. The recipient of the GPL’d work receives the right to use the work. Customers of the recipient receive a set of rights. The author receives nothing as a direct result of the GPL (they may subsequently get code back if someone downstream happens to share it, but the GPL does not require this).
It’s quite surprising to see the defendant arguing that this should be treated as copyright infringement because the statutory penalties are much higher in that case, especially with the precedent that the RIAA set that each copy distributed counts as a separate incident and triggers the punitive damages again.
In legal terms, this is called a peppercorn.
My suspicion (don’t quote me on this) is that a copyright claim would have to go through federal court, which lacks California’s rule allowing the SFC to sue as a third-party beneficiary.
Yes the OP mention it…
It has to do with standing: This is a contract-court.
Vizio wants to argue it is a license (and so it deals with e.g. copyright infringement) in the legal sense of the word so that this court cannot hear the case.
So why did SFC make this a state contract suit rather than a federal copyright suit in the first place? Federal judiciary too right wing?
As mentioned, in a license law, the SFC has no standing as they are a third party. A concept that is not accepted in license court, as the SFC does not represent the copyright owner
Conservancy can represent several of the relevant copyright holders, but they cannot use a copyright case to ask for source code, nor wouud that get them a precedent that all other USA software users also have standing to sue.
As mentioned where?
In the OP….
You are mistaken.
From the OP:
There are actually multiple relevant paragraphs, but this seems the most explicit about the issue
Yeah, and the closest thing is this:
which requires a leap of inference to get to “SFC has no standing under license law.” It seems plausible, but it was certainly not mentioned in the article. Are we supposed to know that the contracts-law “third-party beneficiary” concept is the only legal device that could give the SFC standing to sue?
Would it really be that hard for the SFC to find a Linux/bash/glibc contributor to sign on to the suit, if that’s even necessary?
Again, the article says that, it goes into great detail on the matter. It does not have a single sentence saying “by making this a copyright license case, Vizio is forcing this into federal courts where there is no concept of a third party beneficiary, and so SFC would have no legal standing to bring the case and it would be dismissed.” It does have numerous paragraphs that together make this point. e.g. one paragraph details how contract vs license suits are preempted by federal law, one details how third-party standing differs between contracts and licenses in CA vs federal law, one explains how everything combines to completely remove the SFCs right to sue.
In principle anyone could have done that already. The whole point is SFC wants to do this unilaterally without working with actual authors because that’s more expensive. My not at all a lawyer take is the issue is this:
If SFC has no standing all they can do is provide lawyers. But lawsuits take time and money for the non-lawyer person as well: you have to attend depositions, for which you may have to travel, that can take 10s of hours. So you not only need someone who’s copyright was violated, but they have to have the time and money to be able to handle the case workload. These cases are generally about forcing source code to be released, not extracting monetary damages, so the end result is you are fundamentally out of pocket (you can get compensated for say hotel time, but not for vacation time, etc). e.g. the end result may still be the contributor being out of pocket.
The other side is developers working for companies that contribute to open source (e.g. the ones that might be able to afford the time) are likely not the copyright owners - e.g. for the last 15 or 20 years all my open source code belongs to large corporations, so for that code I would not have standing either. So you actually need to convince the company to be part of the suit not the individual developers there.
You don’t think the discussion is worth continuing?
I now realize you are not the original person I asked about this, so why are you saying “again”? Did you already say the article says SFC has no standing under license law? I can address the rest of your comment but want to make sure I’m not having an aneurysm. Whats with the “again”?
Wild guess: MIT and BSD licenses already existed, so it’s less of an adoption hurdle to think about GPL as a license.
Otherwise users would be confused about putting contracts on their code.
TBH I don’t think this article was very well written - it doesn’t give references or definitions
So the TL;DR (for a law challenged person like me): The GPL is a contract rather than a licence. Apart from technicality about what court can prosecute what case, is there any other implication at large for the world of software? The article make it seems like it is super big, but I’m not really getting it.
If it’s a license, only the copyright holder can sue for access to GPL source code. If it’s a contract, anyone can sue, per terms of the contract.
It is quite probably both a contract and a license
Not quite. The emerging upshot is that “It’s a license” and “It’s a contract” aren’t mutually exclusive.
If someone sues you under copyright in some GPL software, but you followed all the GPL’s rules, you can beat the lawsuit by pointing to the GPL. In legal terms, you can plead “license” as a defense to “copyright infringement”. In that sense, “GPL is a license”.
If you break the rules of the GPL, you might get sued under copyright, you might get sued under contract, or you might get sued under both. Forms like the GPLs have various different rules, and there’s some legal uncertainty about what kind of legal claims—copyright or contract—come from breaking which kinds of rules. Whether just copyright or also contract law applies has some important consequences.
The important one in Conservancy’s lawsuit against Vizio is whether people and groups other than the owners of copyright in software can sue under contract for breaking the GPL’s rule about sharing source code. Legally, the rule that potentially lets someone who isn’t the one giving the license or the one who arguably broke its rules is a rule of contract law, not copyright law. So Conservancy and Vizio are fighting about whether breaking that rule can lead to a contract lawsuit or only a copyright lawsuit.
The body of law, type of case, who can bring a case, the precedents, the way the law is interpreted,… Basically nothing work the same?
Case in point, the SFC has no standing for this case in licensing law. It does in contract law.
Ah, okay, I think I get it: So if I were to put it in my own word : If a party reuse GPL code, they are exposed to lawsuit related to contract law, in addition to lawsuit related to licensing law. Which mean, in a way, that reusing GPL code expose one to much more legal risk that what was thought previously. Or to put it in more positive term : GPL code imply more legal protection than previously thought, and more people can claim right related to it.
Something like that?
Based on https://sfconservancy.org/copyleft-compliance/vizio.html
It’s not clear to me that Vizio sells anything that gives users the right to ask for source code. What makes SFC think that they can demand source code? Do the TVs contain any GPLv3+ licensed code?
The original complaint by SFC is linked on that web page: https://sfconservancy.org/docs/software-freedom-conservancy-v-vizio-complaint-2021-10-19.pdf
It alleges that Vizio sells smart TVs with operating systems based on GPL’d source code, but does not meet the copyleft obligations of the license.
My bad. I was thinking of Tivoization, but this is not that.
Tivoization is also largely a myth, since the specific thing TiVo did (not allow their nonfree code to run on a replaced OS) is still allowed under GPLv3 and the thing people who came along later think TiVo did (make it impossible to install new firmware at all, like with some android phones) is not allowed even under GPLv2
Isn’t it? What part of the GPLv2 (or v3) implies firmware must be replaceable by the user?
GPLv2 specifically requires users be gvien access to all “scripts to control compilation and installation of the executable” which means (unsurprisingly) that users must be able to both compile the source code, and install it on the device, not just study it.
If that was true, then why would the GPLv3’s TiVo clause exist?
This is not enough because it does not cover signing keys (AFAICT), so users cannot sign modified version of the firmware.
Obviously this is still making its way through the courts, but it is the opinion of many legal experts (such as those involved in these cases) that this covers the ability to install the software. So that may be via signing keys, via an option to disable signature checking, via a “write protect screw” as on some chromebooks, many avenues available for compliance, but if the end user cannot install their build on the device then they do not have all of what they need to “control installation” and thus they do not have what is required by the GPL. Hopefully we have a definitive ruling on this by a court in the next couple years.
According to ZDNet:
https://www.zdnet.com/article/open-source-vizio-lawsuit-takes-an-ugly-turn/
My understanding:
What a mess.
It seems like the the Conservancy lawyers say: Website/internet opinions that GPL is a license and not a contract, are not lawyer or judges opinions, therefore not relevant for the lawsuit
But then the Conservancy lawyers also argue that the community (the same that believes GPL is a license, not a contract), can sue Vizio for violation of contract.
The two statements aren’t in-conflict, but require context to properly understand. I’m not so certain this article explains it very well.
This court can hear about contracts. Vizio says “a bunch of non-lawyers” think this is a “license not a contract” so this court cannot hear this case; Conservancy agrees with the first part, but says “those same bunch of non-lawyers” think this court can hear this case (which is what the second statement is).
The main thing is that “the contract” they are talking about isn’t clearly written down, and the reason it isn’t clear is because “a bunch of non-lawyers” did the writing, but like any verbal contract, all a contract really requires is agreement.
So Conservancy argues: If the terms are understood, and Vizio acts in accordance to those terms, then Vizio automatically enters “into contact” with everyone who could be harmed by Vizio failing to implement those terms. This is a contract, and so therefore, “this court” can hear the case and implement a cure.
Vizio wants this to be a “license”, because if it’s a license, we just hear Conservancy’s argument, but it’s moot, because this court can’t hear it, and we won’t need to hear Vizio explain what they think their rights are.
The Judge (in California) is elected, so they need to see press like this to understand if they make a mistake, the ramifications will be huge. They probably would be: If they refuse to hear the case, and Conservancy can’t get another court to hear it, then companies are probably going to start ignoring other files called “license” and this Judge will get blamed.
If he gets blamed, he will also get credit from the concentrations of wealth that want him to rule that way.
Note that it is not that simple. Concentration of wealth also knows that killing the open source golden goose would be highlu detrimental and costly to their own wealth concentration machinery.
Can you sketch out how hobbling copyleft would be detrimental to them?
Sure. 75% to 90% of their code is open source from external coders. And that is the case across the industry. We actually have numbers about this. Killing the thing that attract maintainers to share the code they write would … Basically kill the software industry at this point.
Are you saying that maintainers’/developers’ willingness to share code depends on copyleft being enforceable?
Separately, I would be interested to see where those numbers come from.
Note that this is not only about copyleft. There are other things in licenses that you want to enforce. And in general if you start using code with licence and not respecting the terms, the fact it is copyleft does not change the fact we cannot trust you for non copyleft one.
For these numbers, see https://www.synopsys.com/content/dam/synopsys/sig-assets/reports/rep-ossra-2022.pdf
It’s not that simple. The argument for the GPL being a contract and everyone else being third-party beneficiaries doesn’t extend to permissive licenses, so I don’t think this ruling will have much bearing on that.
Regardless, are you then saying that maintainers’/developers’ willingness to share code depends on third parties being able to enforce the attribution requirements of permissive licenses?
I am saying that anything that will make maintaineds feel like the opensource/free “social contract” is abused far more than it already is will make a lot of them rethink their involvement yes. We already are having a pretty bad burnout problem in that domain, which is starting to real scare governments and corporations at the edge.
Wait why say “yes” if that’s not what I asked. Does that mean “yes, maintainers’/developers’ willingness to share code depends on third parties being able to enforce attribution requirements of permissive licenses?”
I mean yes, because otherwise they have to do it themselves, which noone has money and time for. The US court system is based on third parties enforcing laws for you
We disagree on what motivates people to write and share code, but there isn’t much data to draw on. I just think it’s a very strange position.
Surely 75-90% of code used by commercial entities is not copyleft licensed, right? I would be surprised if this was the case. My understanding is that companies strongly prefer permissively licensed OSS.
Going by lines of code, the Linux kernel may make up that percentage. I’m just not convinced Linux would collapse if GPL were not enforceable.
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Not a lawyer, but I always thought of MIT license as a license, and GPL as a contract. The GPL is like a nation’s constitution, a contract engineered to grant and protect freedom.
The legal idea is that “license” and “contract” aren’t mutually exclusive categories. Loose OOP analogy: license and contracts are interfaces that a deal can implement, not different, single-inheritance parent classes.
Legally, “license” is a “defense” to copyright infringement. If you get sued under copyright, you can beat the case by pointing to evidence you had permission to do what you did. Legally, “contract” means either side, and potentially other people who weren’t part of the agreement but were meant to be benefited by it, can sue to enforce the terms of the deal. That’s different than suing for copyright infringement, which is about someone else copying, sharing, and doing other specific things with a creative work that the law gives you ownership of.
MIT sets a lot fewer rules than the GPLs. But there is a requirement to keep copyright and license notices on the software. There is also a big chunk of disclaimer language at the end, which responds to some defaults in contract law.
I published this read-through tour of the MIT License a while back, if you’d like to have a look “under the hood”.
GNU General Public License. I know it’s just a name, but uhhh.
But uhhh what? It’s a contract. There’s an offer, acceptance, and consideration. Calling a duck a squid doesn’t stop courts declaring it quacks. MIT license is a contract but I’m not a lawyer and don’t see the consideration in it’s terms, just offer and acceptance, so “license” it is. Don’t ask me to explain what a license is - I don’t know, I just know it gives you permission to do something.
The consideration in MIT is you must include the copyright and a copy of the license, right? I don’t see how the two are different.
Not a lawyer, so I don’t know to what extent MIT license terms could provide consideration. Maybe not suing your upstream. Derivative works being shared in return definitely is consideration, though.
I disagree. It would be if the GPL had a condition that you must share derived works with upstream, but it requires only that you share them downstream. This means that there is nothing that upstream receives as a result of the license (they may receive the changes because it’s cheaper to send them upstream than maintain a fork, but that’s an orthogonal concern).
Consideration doesn’t have to be something literally given in return. Definition from Reuters’ Practical Law
Yes, it does; consideration must be something valuable, although it doesn’t have to be material.
In this situation, the typical understanding is that, absent the GPL, there is no permission given for any usage of the code; all rights are reserved according to standard copyright law.
I am not a lawyer, but it feels like a big stretch of that definition to view a constraint on sublicensing (you may sublicense only if you impose the same terms on those that you sublicense to) as a consideration.
I think the advertisement of the licensee as a user of the GPL’d software as well as the advertisement of the availability of the source code could be argued with a straight face to be of value to the publisher. Notoriety is of value after all. Both celebrities and companies have been award damages for harm to their reputation.
edit: it occurs to me now that you may have been pointing to the conditional nature of the GPL. i.e. if the licensee does not distribute then the publisher would not receive any notoriety. However there are a lot of contracts like this in other legal areas such as real estate, mergers, and finance.
This is probably complicated in the US, because moral rights are state law not Federal, but in Europe you have the right to demand attribution does not rely on a contract or explicit license.
I guess that if a promise can be consideration, the promise to publish modifications might count?
I’m not sure that it is, because you’re not promising to release changes, you’re agreeing to be bound by conditions if you distribute and impose those conditions on everyone that you distribute to. You’re receiving a set of rights that’s less than unlimited redistribution, but if I give you £10 you’re not giving me £5 simply because I didn’t give you £15.
The consideration must have some value to the contracting party who is offering the product or service. It’s hard to imagine that any reasonable person would agree that a nebulous possible future modification has any value. For example, what is the estimate of the value? If you are a public company and you go to your shareholders and try to convince them of this value, are you likely to be laughed out of the room? (Yes.)
To put it another way–if you can claim that this promise is consideration, then you can also claim that a promise to, in the future, possibly write and publish a technical article is consideration in exchange for a good or service offered. Which, again, no reasonable person would agree with that.
Software licenses are not contracts. Otherwise why do you have to accept an EULA (End User License Agreement) in order to use software installed on a phone that you have already bought? I.e. you executed a contract with the party who sold you the phone, you paid them the consideration in exchange for the phone, and now you still need to accept a license or else you can’t actually use the phone. Clearly, the license is separate from the contract.
That example makes sense because phones don’t ship with an Android CD and license key. Or I suppose an Android SD card would make more sense, assuming the phone has a slot for one of those.
Because the money you paid was for the hardware. The EULA is granting you permission to run certain software on that hardware. If you don’t accept it, you can still use the hardware but you can’t use the software.
It is not the case, legally speaking, that something which grants you certain rights/permissions to software must be either precisely 100% license and 0% contract or precisely 100% contract and 0% license; it is possible for something to have aspects of both, or to be interpreted differently by different courts or in different situations.
Oh man, this gets complicated because in the US you often don’t actually “own” the hardware in the sense that you can do anything with it. This is part of the reason for the “right to repair” movement. Zod, I love all the complications we as consumers have as a result of capitalism.
You own the hardware. If someone came and physically took it from you, you could report it as theft, for example, and seek to have it returned to your possession. And you can dispose of it as you choose (within the bounds of local laws about things like disposal of batteries and electrical components, of course). And so on – you have the rights normally associated with ownership.
It might be the case that you do not have and cannot easily obtain the tools to reliably disassemble and reassemble the device to a working state, or to replacement parts which will work with the device, but stretching the definition of “ownership” to include a mandate to provide those things is, well, a stretch. Which is one reason why I tend to fight back, hard, against any attempt to make “ownership” synonymous with “easily end-user repairable and manufacturer is required to provide parts and tooling and training in their use on demand”.
That’s fine but I still don’t see any indication that the EULA is a contract. If it is, what are its contractual components?
The only reliable “contractual components” are “a court rules that it is a contract”.
Naming something a “license”, for example, doesn’t bind a court to finding that it isn’t a contract, any more than starting a brutal dictatorship and calling it the Glorious People’s Democratic Republic of Liberty makes that name accurate.
OK, so where is the court ruling that free software licenses like GPL are contracts? Because in the absence of that, I am inclined to give credence to an actual software licensing lawyer: https://lobste.rs/s/rmhnw9/we_were_wrong_about_gpls#c_qmgu2v
There was one out of France a few years ago that did come to this conclusion. Though the French legal system is quite different than the American one so there’s not much value in that decision here.
The article this whole comment thread is about was written by a lawyer.
As C.S Peirce would say, we have now reached the limits of the “method of authority” as a dispute resolver – two authorities disagree. Sooner or later we must move on to the “method of science” – in this case, of performing experiments in the real world (court cases, rather than blog posts or essays or wiki pages) and seeing how they turn out. But I suggest you keep your mind open to the possibility that the result might be, as I said originally, that the answer will be “not 100% license and also not 100% contract but a mix of both”.
Like I said, in the absence of a court ruling, I will look at other sources. And yes, I will look at authoritative sources first, because usually they’re authoritative for a reason. If we are being scientific, then statistically an authoritative source is more likely to know something relevant about the matter.
The answer may be ‘it’s a mix of both’, but a specific one needs to be chosen for the purposes of application to this specific case. And that’s what I’m interested in.
There is no “authoritative source”, though. There are different lawyers with different positions, and you’re just sort of arbitrarily picking one to declare as “authoritative”. On what grounds?
I thought we were talking about authoritative sources because your argument was that we were debating by ‘method of authority’. It’s a matter of who you consider more authoritative, I guess, and I consider Eben Moglen, a free software lawyer and professor, to be pretty authoritative on it. OP less so not so much because I don’t know them, but more because I can’t make heads or tails out of their point.
OP is an attorney well known for writing about software licensing and open source.
Again it seems difficult to find grounds to say “I choose this lawyer as authoritative over all others”. At that point it’s less “authoritative” and more “arbitrary”.
An EULA is a contract. It forms an offer (the software), acceptance (your use of the software), and consideration (the terms of the agreement - access to the software in return for following the terms of the agreement).
https://en.wikipedia.org/wiki/End-user_license_agreement#Comparison_with_free_software_licenses
The reference [5]:
GPL prefers
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