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Re: Questions about legal theory behind (L)GPL

The only form in which the GPL can be read as requiring any conduct
from licensees (such as the provision of copies of source code on
demand and the extension of the GPL to the licensee's copyright in
derived works) is as an offer of (bilateral) contract, duly accepted
by the licensee, in return for valid consideration.  If anyone can
cite legal precedent to the contrary, now would be a good time to
mention it; licensing@fsf.org doesn't seem to have any to offer.

Nathanael Nerode <neroden@fastmail.fm> wrote:
> I noticed something interesting on groklaw the other day (in
> http://www.groklaw.net/article.php?story=20041221062757984 ):
> "In law school, first-year law students are taught that a contract is an
> exchange of promises: a promise for a promise...."
> "...As stated above, a contract is an exchange of promises. A glaring
> exception is gifts. Often, a promise to make a gift, with no return
> obligation whatsoever, is an enforceable contract."
> I think this clarifies the issue here.  What we have been saying about
> "not a contract" was based on a, shall we say, "first-year"
> understanding of the law.  The GPL is not necessarily an exchange of
> promises -- it may not have consideration.

Perhaps, but the Groklaw article doesn't have much to say about this;
it talks about "donee beneficiaries" as a category of third-party
beneficiary, which doesn't apply to the parties to the GPL (presuming
that acceptance is established).

> However, if the contract formed in the GPL isn't such an "exchange",
> then it can only be one thing: a promise to make a gift.  And presumably
> one of a variety which is an enforceable contract.

To the extent that it purports to restrict the behavior of the
offeree, it can be another thing: an "illusory contract" and hence
unenforceable on the offeree.  That's the conclusion that courts
usually reach when consideration is not found.  In any case, a gift is
a transfer of ownership, and a non-exclusive copyright license is not;
courts in the US have consistently declined to find implicit transfers
of ownership or of the right to sub-license, and only a valid contract
can bind a copyright holder to issue a license.

As with most contracts, the terms of a non-exclusive license may be
implied by conduct in the absence of a clear written agreement (see,
e. g., Foad v. Musil Govan Azzalino at
http://caselaw.lp.findlaw.com/data2/circs/9th/9856017p.pdf ), or where
the wording of the agreement is in conflict with principles of equity.
 However, at least in the US, transfer of copyright ownership is
unusual in that it can only be done in writing and undivided, per
courts' interpretation of the Copyright Act of 1976.  (There was a
doctrine of "informal assignment" under the 1909 Act -- see
Self-Realization v. Ananda Church at
http://laws.lp.findlaw.com/9th/9717407.html -- but the Ninth Circuit
found in Effects v. Cohen that the 1976 Act required written

(Interestingly, the Foad v. Musil decision contains an opinion by
Kozinski, concurring in the result but not in the reasoning, which
comes closer to articulating a form of copyright license not governed
by state contract law than anything else I have read.  Unfortunately
for the FSF, the authority cited by Kozinski (Corbin on Contracts)
defines this type of implied contract as "created otherwise than by
assent and without any words or conduct that are interpreted as
promissory" -- hardly applicable to the GPL.  Kozinski reads this type
of implied license into the Effects v. Cohen decision, but only as a
matter of opinion and not of precedent.)

For a case in which the court further limited the scope of implicitly
granted rights, finding that an exclusive license does not
automatically convey the full ownership rights associated with a
copyright assignment, see Gardner v. Nike 2002 (
http://caselaw.lp.findlaw.com/data2/circs/9th/0056404p.pdf ) and the
Second Circuit's similar decision in Morris v. Business Concepts 2001
( http://caselaw.lp.findlaw.com/data2/circs/2nd/007509.html ;
subsequently modified in
http://caselaw.lp.findlaw.com/data2/circs/2nd/007509v2.html ).  See
also Walthal v. Corey Rusk 1999 (
http://laws.lp.findlaw.com/7th/981659.html ), in which the Seventh
Circuit found that a grant of license with no explicit term was
terminable at will under Illinois law, in contradiction to the Ninth
Circuit's ruling in Rano v. Sipa Press 1993.

> > "If you do X (distribute binaries) you must do Y (redistribute
> > source)" seems like a fairly normal conditional-promise formula to me.
> It may look like it, but it really has an odd difference.
> "If you do X (which I am giving you a license to do, and you may not do
> otherwise), you must also do Y (which I am giving you a license to do,
> and you may not do otherwise)".
> There's a reason I used the analogy of "You may walk on my property,
> provided you walk barefoot".  It's different from "You may walk on my
> property, provided you give me five dollars".  Despite the formulation,
> it actually amounts to "You may walk barefoot on my property."

That's a poor analogy.  It's more like "drink all the water you can
hold, wash your face, cool your feet; but leave a bottleful for
others, thank you kindly, Desert Pete" (with apologies to Billy Edd
Wheeler and the Kingston Trio).  I have cited cases elsewhere which
demonstrate, at least to my satisfaction with regard to US precedent,
that the GPL is an ordinary bilateral contract, not some sort of
unilateral gift of gerrymandered copyright territory.

[snip reference to Planetary Motion v. Techplosion 2001]
> > Note that this isn't quite the same thing as proving consideration,
> Based on the bit I quoted above, consideration may actually turn out to
> be irrelevant for most purposes.  Which would simplify our lives.  :-)

With all due respect to you and to the FSF, trying to situate the
(L)GPL outside the realm of ordinary bilateral contract doesn't
simplify our lives.  Where precedents are thin on the ground, a court
has more scope to create novel law by reaching past the letter of a
statute or an agreement to find legislative intent or a principle of
equity.  One might get lucky, and get an enlightened judge to
articulate a right to place one's creative work in the commons and
keep it there; but it doesn't look to me like that's the most likely

- Michael

P. S.  It's interesting that this thread made DWN; I would have
thought that it was already well-trampled ground.  See, for instance,
http://www.advogato.org/article/606.html , and in particular the
comments by Gregory Pomerantz (gmp).  He references several of the
decisions that I do above; he misses, however, the fact that copyright
licenses in the US can't be made perpetual.  17 USC 203 says that the
copyright holder can terminate a non-exclusive license after 35 years,
even if the ostensible term of the license was longer (or perpetual);
different jurisdictions disagree on whether state contract law can set
a shorter term in the absence of any termination clause, as discussed

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