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Re: choice of law clauses and GPL

From: Rjack
Subject: Re: choice of law clauses and GPL
Date: Tue, 18 Aug 2009 16:19:40 -0400
User-agent: Thunderbird (Windows/20090605)

Tim Smith wrote:
On the licenses list at, there are several licenses in the
 "free but not GPL compatible" list that appear to be incompatible
 because they contain a choice of law clause.

Why would a choice of law clause make a license incompatible with GPL?

The FSF refuses to admit the GPL is a contract. Contracts are
interpreted under the common law of fifty different states, therefore
a choice of law clause would be meaningful in the interpretation of
contracts. The FSF claims the GPL is a "pure", non-contractual
copyright license enforced under the Federal Copyright Act and thus
state common law is irrelevant.


-- "A copyright license is a contract like any other contract and the
starting point of the analysis must necessarily be the terms of the
license. See Cohen v. Paramount Pictures Corp., 845 F.2d 851, 853 (9th
Cir. 1988); see also 3 M. Nimmer & D. Nimmer, Nimmer on Copyright ยง
10.08 (1988)."; Apple Computer, Inc. v. Microsoft Corp., 717 F. Supp.
1428, 1432 (N.D. Cal. 1989) --

-- "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, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "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, (United
States Court of Appeals for the Seventh Circuit 2006) --

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