On the Recent GPL Enforceability News

Over the last week I've received daily links from colleagues excited about the recent GPL news, so I figured I would share my thoughts here. Of course, before we continue, I'm obliged to say I am not a lawyer, and my comments on software license law are purely from my position as an armchair lawyer.

Update: This post made it's way to open-source luminary Bruce Perens, who authored his own post to respond to some of the questions I lay out, here. I've updated this post with Bruce's insight.

As you might have seen reported by a dozen tech news outlets, "the Northern California District Court recently made an important ruling regarding the GNU General Public License (GPL)". The headlines from Quartz, HACKADAY, and The Register are shown below.

The most thorough & accurate write-up about the decision, though, I think came from Lexology, a law news website. I highly recommend reading this brief on on the ruling for a deeper look at what's going on.

Each of those articles discusses the case and what happened, so I won't bother regurgitating the content. There are a few things I think are really interesting about this decision, though.

First, as stated in the Lexology post, the judge did not make a ruling regarding the GPL, specifically. What the judge did was dismiss an argument by the defendant that the license (in this case, the GPL) was not enforceable because no contract was signed. You may note that the headline from the Lexology article uses slightly different language than the other headlines:

Secondly, there's the matter of contract versus copyright law. In her decision, the Judge specifically says, "...These allegations sufficiently plead the existence of a contract." This line, in particular, is what the tech news headlines are going nuts about, because she seems to be saying that the software license might constitute a contract. What's really interesting about this is that this is directly counter to what the Free Software Foundation (FSF), the maintainers of the license in question, say about the license.

The FSF has always maintained that the GPL is not a contract and doesn't need to be. Per Eben Moglen's article "Enforcing the GPL", if a work of software is copyrighted, you have almost no rights to use that work ("All Rights Reserved"). The software license (e.g., the GPL) is the only thing that grants you usage rights, so treating it as a software contract doesn't make sense, in his opinion. As stated in Moglen's guidance:

The essence of copyright law, like other systems of property rules, is the power to exclude. The copyright holder is legally empowered to exclude all others from copying, distributing, and making derivative works.

This right to exclude implies an equally large power to license—that is, to grant permission to do what would otherwise be forbidden. 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.

So, here's where it gets crazy. I'll put this in bullets to try and make it more succinct:

  • The defendant claims they are not bound by the software license, because they never signed a contract.
  • The FSF, maintainers of that license, have clearly stated that the license is not a contract, indeed should not be, and is clearly enforceable.
  • The Judge decides that the license might be a contract, and would thus be enforceable.

Setting the defendant's opinion aside, which is clearly not only wrong but unscrupulous and crooked, the Judge and the FSF appear to disagree with each other about how the license could or should be enforced. What this means for the GPL, and software licenses in general, I'm not sure, but it certainly seems like the case could have an impact on software licensing depending on how it unfolds. I plan to follow it closely.

Update: Bruce Perens, who unlike me actually is an expert on these topics, has responded to my questions in his own post, Understanding the GPL is a Contract Court Case. He provides some excellent background, and his post is well worth the read. The quick summary, though, is that the GPL is, for now, both and contract and a license (possibly depending on your court district), although there is still some uncertainty. From Bruce's post:

The case is not over, and one attorney I work with remains adamant that the GPL is still not a contract, while others are just as adamant that it is. It’s possible that the district court might not find for [the] contract claim, or that we could see an appeals court rule again on whether the GPL is a contract or not.

Bruce's post also contains some interesting background on the history of the plaintiff and software in-question, as well as some thoughts on the FSF's philosophical position regarding contract versus copyright.

Since we're on the topic of how on-going court cases could affect technology, I'll switch gears for a second to talk about a ruling the SCOTUS is expected to give this Summer in Impression Products v. Lexmark International. To describe it briefly, Lexmark, the printer manufacturer you know and love, is arguing that by opening a product you agree to the manufacturer's license for that product which could limit the manner in which you use the product.

Here's an example: I sell you a brick in a box, and tell you that by opening the box you agree to my license, which states that you are prohibited from using the brick as a door stop.

Good summaries of the case are provided by Fortune and Gizmodo, and you can find a much longer & thorough write-up on SCOTUSblog. This case could have a tremendous impact on not just technology, but pretty much anything that is a consumer product, and I'm fairly anxious about how SCOTUS will rule, here.

Update: SCOTUS ruled against Lexmark! Wired covered the ruling in How a Supreme Court Just Bolstered Your Right to Repair Stuff, and as usual, Wired's sister publication, Ars Technica, has a more detailed write-up with fewer ads.

Ben Hilburn

Ben Hilburn

bits, nibbles, bytes, and words
D.C. Metro Area