Contract and Tort Law and the GPL
It's been suggested that existing case law with respect to copyrights
always is based on contract law, and that the GPL can only be
understood in terms of contract law.
As near as I can tell, this is mistaking correlation with causation.
Standard industry practice involves the use of contract law in the
application of copyright license. Businesses are in business to make
money, and the standard legal approach for making money in the context
of copyright involves contracts.
But in the case of the GPL, no one is signing any contracts.
You can construe value in the context of the GPL. For example, you
can roughly examine the man-hours which have gone into the production
of a GPLed work, and estimate value that way. Or, you can look at the
placement and volume of GPLed products within the industry and
estimate value in terms of analogous volumes of analogous software.
Or, you could look at businesses which rely on GPLed software and make
some kind of estimate based on their businesses. Other approaches are
also possible.
And, to get fair consideration from a court of law, it's quite
possible that GPL arguments should be cast in the form of such
mechanisms of exchange -- if the court is to assign damages for
violating the GPL it's going to have to have something to go on. Of
course, it's also possible that the court will recognize the public
benefit of GPLed software and could in assess damages on that basis
(this is not an unrelated issue).
So it should be possible to treat the GPL as if an implicit contract
had been signed, and proceed from there, and the damages inflicted by
GPL violation in such cases could be substantial.
However, one of the big defects of contract law, in the context of the
GPL, is that it can be difficult to obtain standing for cases of
copyright violation. GPLed projects tend to have many contributors,
with many people holding copyright on only a small slice of a work.
Another issue is that monetary compensation doesn't really address the
problems created by GPL violation.
However, there is the other option: Tort Law.
In particular, I can see a class action lawsuit against a GPL
copyright violator as having a good chance of success. Here, the
community of people who have put development and debugging effort into
some significant piece of GPLed software could charge that some
violator has been negligent in granting proper copyright on some
program which contains the GPLed code.
They would not necessarily be suing for monetary compensation, but
might instead be suing to have the program licensed properly (plus
court costs, since starving lawyers tend not to do so well in court).
Then again, perhaps for repeating offenders or blatant violators (if
there ever are such), punitive damages could be charged (and perhaps
placed in a trust fund or legal fund or some other such
community-oriented dispensation).
This wouldn't necessarily be an easy lawsuit to undertake, the
research and groundwork could be significant. But I think that such
legal action could have a very real chance of success if done right.
(At least, in the U.S. -- I don't know about other countries.)
And, on the flip side, little established legal precedent means that
the results could be favorable in ways that wouldn't necessarily be
obvious by studying legal precedent under contract law.
Finally note that with many industry heavy hitters gaining significant
benefit from GPLed software, these hypothetical legal actions might
have some serious backing.
--
Raul
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