Re: the GPL is a license not a contract ..

[Rjack]

Doug Mentohl wrote:
> Rjack wrote:
>
> > The great debate on the software blogs about TomTom violating 
> > the GPL is sheer nonsense of the same caliber as Eben Moglen's 
> > nonsense about a copyright license not being a contract.
>
> 'The GPL only obliges you if you distribute software made from 
> GPL'd code, and only needs to be accepted when redistribution 
> occurs'
>
> http://emoglen.law.columbia.edu/my_pubs/lu-12.html
>
> 'If this argument were valid, no copyright license could permit a
>  licensee to make multiple copies of a licensed program. That 
> would make not just the GPL "illegal": Heise's supposed theory 
> would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all
>  other free software licenses'
>
> http://news.cnet.com/Putting-the-GPL-on-trial/2010-1071_3-5065289.html
>
>
> The GPL, however, is a true copyright license: a unilateral 
> permission, in which no obligations are reciprocally required by 
> the licensor. Copyright holders of computer programs are given, 
> by the Copyright Act, exclusive right to copy, modify and 
> redistribute their programs. The GPL, reduced to its essence, 
> says:
>
> 'You may copy, modify and redistribute this software, whether 
> modified or unmodified, freely. But if you redistribute it, in 
> modified or unmodified form, your permission extends only to 
> distribution under the terms of this license. If you violate the 
> terms of this license, all permission is withdrawn.'
>
> http://lwn.net/Articles/61292/

What you have said is what Eben Moglen has said. How about some
commentary from other lawyers?

1) Let's try the Supreme Court of the United States:

"MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
. . .
Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; De Forest Radio
Tel. & Tel. Co. v. United States, 273 U.S. 236, (1927).

2) Let's try The United States Court of Appeals for the Federal Circuit:

"RADER, Circuit Judge.
. . .
Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (CAFC 1995).

3) Let's try The United States Court of Appeals for the Seventh Circuit:

"ROVNER, Circuit Judge.
. . .
Although the United States Copyright Act, 17 U.S.C.  101- 1332,
grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, CA7 2006).

For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

Sincerely,
Rjack :)