[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: Questions about legal theory behind (L)GPL

Warning: IANAL.

>1)  The (L)GPL is legally an offer of contract, right?
>It was claimed during the debian-devel discussion that the LGPL is
>somehow a unilateral grant of rights under some legal theory other
>than contract, which doesn't make sense to me.

If you agree to the GPL (or LGPL), you do not lose any rights you would have 
had if you hadn't agreed to it.  It strictly increases the things you are 
legally allowed to do.

This is what we meant when we said that the GPL is "not a contract".

If you want to get really technical about it, I suppose you could say that the 
GPL offers you the opportunity to enter into one or more of several contracts 
-- certainly in the very broad German sense of "contract" (which doesn't 
require consideration).  Contract (1) is in clause 1 ("You may copy and 
distribute verbatim copies of the Program's source code as you receive it, in 
any medium, provided that you..."), contract (2) is in clause 2 ("You may 
modify your copy or copies of the Program or any portion of it, thus forming 
a work based on the Program, and copy and distribute such modifications or 
work under the terms of Section 1 above, provided that you also meet all of 
these conditions:..."), and contract (3) is in clause 3 ("You may copy and 
distribute the Program (or a work based on it, under Section 2) in object 
code or executable form under the terms of Sections 1 and 2 above provided 
that you also do one of the following:...").  

The GPL also grants certain rights without restriction:
"The act of running the Program is not restricted,"
"You may charge a fee for the physical act of transferring a copy, and
you may at your option offer warranty protection in exchange for a fee."

(Incidentally, GPL clause 5 contains an outright lie.
"You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission to modify or
distribute the Program or its derivative works.  These actions are
prohibited by law if you do not accept this License. "
Of course, there are fair use/fair dealing/library privilege/interoperability 

The GPL is more of an *offer* than a contract in itself.

>This opinion seems to make it clear that conditional promises constitute
>sufficient consideration to form a contract. 
Ah, but the nature of the conditional promises in the case of the GPL is 
rather interesting; essentially all of them constitute restrictions on the 
granted permissions.  They do not restrict any behavior which would have been 
allowed if they GPL had not been agreed to.  This is the rather interesting 
point which has been noticed.

This raises an interesting question regarding the nature of consideration, 
which the cited case does *not* address.  I would expect it to be addressed 
by cases in matters such as trespassing or fishing licenses.  (Suppose I put 
up a sign saying "No trespassing.  But you may come in provided you walk 
barefoot."  This would be a similar type of license.  And I suppose there is 
a contract in there, in some sense.  But in another sense, there's no 
consideration there.)  If anyone has references to such cases clarifying 
these issues, I'd be very interested.

>Or is there really some other way besides a
>contract to extend a non-exclusive copyright license to those parties
>which comply with particular obligations?
That would be a unilateral but restricted license grant.  A partial copyright 
license, you might say.

From what little I can tell, the law of "unilateral license grants on which 
people rely" -- the category I'd put the GPL in -- appears to be really very 
similar to the law of contracts.  So I'm not sure how much it matters.

The differences would be interesting, if there are any lawyers who know.  I 
seem to recall something about unilateral license grants being constructed in 
favor of the licensor in cases of doubt (because of the lack of 
consideration), unlike ordinary contracts, or unilateral contracts (which are 
constructed against the contract-writer).  I also seem to recall that it's 
much easier for the licensor to unilaterally revoke a unilateral license than 
a contract (but not necessarily when people are relying on the license).  Am 
I completely off my rocker?  Does someone actually know about this area of 

>As I understand it, GNU licenses make no attempt to bind the receiver
>upon receipt of software (as the Netscape license attempted to do). 
>They impose conditions which the distributor must satisfy in order to
>accept an offer of contract and receive an automatic license from the
>copyright holder, and the distributor can't claim "I didn't consent"
>and "I have a license" at the same time.

You have the idea.  You *never* sue someone for violating the terms of the 
GPL; you always sue them for copyright infringement.  If they say "I had 
permission", you say "What permission?"  If they say "The GPL", you say "It 
granted you permission to distribute only under certain conditions, and you 
distributed under other conditions.  Ergo, you had no permission to do what 
you did."

>But unless and until he undertakes to redistribute this
>material (or, technically, to copy it to a greater extent than one is
>legally permitted to do without a copyright license), the receiver has
...which includes the *creation* of derived works in most jurisdictions...
>accepted no conditions and is not bound.

>3)  Can a vendor of non-free software that depends on LGPL libraries
>require users to use particular compiled versions of those libraries?
Not per se; that would be a really rather invasive contract if it prohibited 
me from ever using any other version of the libraries!  I believe the right 
to experiment in this way is constitutionally protected.

The vendor may only provide *support* for use of the non-free software with 
particular compiled versions, however; which is what you seem to be referring 
to later on.  No reason they can't do that.

>Presumably, an agreement between ISV and customer can be written such
>that, say, conditioning the provision of technical support on the
>customer's use of "golden binaries" is a contractual covenant even
>though it reduces the usefulness of the customer's right to modify.
Yeah.  That seems to be permitted.  Recall that the customer still has the 
right to modify the LGPL library, and even use it for other unrelated 
purposes.  (I would certainly hope that a contract which required you to use 
the "golden binaries" for *all* purposes for the rest of your life would be 
rejected as an illegal restraint of trade; anyway, I certainly wouldn't agree 
to such a contract.)

Reply to: