Contract Law and the GPL: A Risky Mix?

Wed, 6 Mar 2024

I've been thinking much about the GNU General Public License (GPL).

The GPL is a cornerstone of the free software movement. Its purpose is simple yet profound: to ensure software freedom remains intact for all program users as code is modified and distributed. However, there is ongoing debate about the way this license does, or should, function legally. Some in free software seem to be pushing, and some courts seem to have shown a willingness, to view the GPL through a contract lens.

I should be clear upfront - I'm not a lawyer, so bear that in mind. These are some of the questions to be considered about the potential issues in considering the GPL a contract rather than purely a copyright license. This categorization seems to have significant implications for its enforceability and strength. Considering this is intended to be a partial list of possible issues, let's explore some of those questions as I see them.

Jurisdictional Variation: Copyright vs. Contract

Contract laws vary significantly from country to country. Could copyright offer more consistency than contract law in this scenario? If the GPL is treated as a contract, could inconsistencies arise depending on which legal system applies and how the terms are interpreted in different jurisdictions? This uncertainty could complicate enforcement actions. Could copyright offer a more predictable legal landscape for GPL-related actions?

Breach of Contract vs. Copyright Infringement

Treating the GPL as a contract means violations become a breach of contract rather than a copyright violation. Are there less stringent penalties available under contract law? Could a contract interpretation limit the rights of the copyright holder? Does copyright offer a broader scope of protection than a contract, including exclusive rights to reproduction, distribution, and the making of derivative works? Could a copyright foundation do a better job of reinforcing the principles of the license and the philosophy behind it?

Unenforceable Terms

Could some GPL provisions not be enforceable under contract law in certain jurisdictions? If so, could that create a risk that a court may strike down clauses fundamental to the GPL's intentions, undermining the power of the license? As with the first question, could copyright better solidify those essential terms and protect them from being dismissed in court, offering more consistency due to international copyright agreements?

The Important Difference

In conclusion, the distinction between viewing the GPL as a contract versus a copyright license might seem subtle. However, it raises questions, has significant implications, and introduces several risks and complexities, mainly stemming from the different legal frameworks and implications of contracts versus licenses.

We've been successfully using it as a copyright license since the beginning. It seems only reasonable that efforts that might change it could result in questions and skepticism. After all, it's important that the GPL have a solid foundation to best align with the objective of defending software freedom and ensuring that users have the right to use, study, modify, and distribute software.