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Re: Questions about legal theory behind (L)GPL

On Thu, 13 Jan 2005 22:00:05 +0000, Henning Makholm <henning@makholm.net> wrote:
> I got lost somewhere along the way: Why is it important to you whether
> the GPL is a "contract" or not?

To me, personally?  It bugs me to see needless conflicts within the
Free Software world caused by GPL interpretations that have no
foundation in law.  IANAL, but I've been following the relevant case
law on and off for years, as a matter of self-defense, and the FSF's
positions on this and other issues look to me to be increasingly
untenable and major obstacles to the very ideals of programmer freedom
they profess.  It's a sad way for a formerly admirable and effective
organization to devolve, and I hope that it's reversible through
reasoned argument.

I have no axe to grind here, and I'm perfectly content not to use FSF
copyright material in ways the FSF doesn't intend.  I got into the
whole topic again when the Linux Core Consortium proposal came up, and
the "(L)GPL is not a contract" fiction was raised to justify why the
LGPL fails to ban de facto consecration of "golden" binaries.  The
other issues in play -- whether drivers containing firmware download
mechanisms have to go into contrib, whether GPL-incompatible Java code
can be run on a GPL JVM, etc. -- have kept me engaged longer, and
brought up more precedents, than I originally intended.

> You don't have to convince me - in my home jurisdiction it is beyond
> dispute that application of the GPL would be a matter for our contract
> law, and I won't aspire to claim anything about how it works in a
> common-law system.
> But the heat of the debate nevertheless leaves me wondering what it's
> for. Does it make any difference, and if so, what?

In US jurisdictions very different standards apply to actions under
contract and under tort, and in particular under the tort of copyright
infringement.  If a plaintiff can demonstrate a likelihood of success
on the facts of copyright infringement, then he is entitled to an
automatic presumption that irreparable harm will come of allowing the
defendant to continue publishing the infringing work while the case is
fully argued, and that presumption is quite hard to rebut.  That's the
"big stick" that the FSF tries to wave over those who misuse (in their
opinion) GPL material -- disruption of their business through
preliminary injunction while the case grinds its way through court.

The FSF's position would be subject to much closer scrutiny under
contract law in other respects as well.  As a matter of law,
ambiguities in a contract have to be construed against the offeror,
because it is presumed that the offeror could have written the terms
of the contract to be as favorable to himself as the offeree would
tolerate.  Statutory overrides and principles of equity may be used to
alter the contract provisions and find additional implied provisions
during the court's interpretation of its text.  And the remedies
applied are subject to pragmatic tests such as the "balance of harms"
and reasonable standards of "cure of breach".

Under either legal standard, I don't believe that linking GPL and
non-GPL material creates a derivative work in violation of the actual
terms of the GPL.  But that's another debate.

- Michael

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