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

From: Rjack
Subject: Re: the GPL is a license not a contract ..
Date: Tue, 10 Mar 2009 19:48:24 -0400
User-agent: Thunderbird (Windows/20081209)

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'

'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'

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 If you violate the terms of this license, all permission is withdrawn.'

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.

Rjack :)

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