Linked by Thom Holwerda on Fri 25th Sep 2009 14:01 UTC
Legal In France, the GPL has scored yet another major win in court. What makes this infringements case special is that it was filed not by the developers of the infringed-upon code, but by users, demonstrating that they, too, can successfully enforce the GPL. Since I noted on a few threads here on OSNews that a lot of people still fail to grasp the difference between an open source license and an EULA, I figured I'd take this opportunity to explain the difference one more time - using hand-crafted diagrams!
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I do not agree that the GPL is a contract - neither the part related to the affirmation of unlimited usage rights (this is an affirmation, you had these rights already - and the GPL neither attempts to extend or restrict any rights related to usage) has any contractual element, and the section you referenced which indicates that you must accept the GPLs terms to distribute, as nothing else gives you that right - is simply a clarifying statement.

Yes, you must notionally 'agree' to these terms in order to distribute legally but that does not end up construed as a contract. You must agree because the provisions of copyrght law force you to, if you wish to remain in compliance with it. For example, if you are a minor, mentally impaired or otherwise deemed incapable of entering into a contract, you are legally able to distribute copyrighted material so long as you comply with it's license

The creator of a work has the right to control its distribution. If I, as the creator of the work say 'its not OK to distribute my work under any circumstances', no contract has been entered between the myself and the public, nor is a person who decides to distribute the work against my stated terms breaching contract. They are (excepting fair use or other distribution allowed under copyright law) violating copyright law.

Because you are subject to copyright law, you are forced to recognise the creator of a works right to unilaterally set the conditions under which it can be distributed. No contract is required or construed between the recipient of the work and the creator, it is the direct result of copyright law. If there is any contract here, it is between you and the state.

GPL violations are not, and cannot be litigated under contract law. The creator of a work licensed under GPL cannot sue you for breach of contract due to GPL violation.

An EULA generally includes this type of copyright-based licensing - but crucially extends it with a contractual component - this component does require agreement, whether implied by fulfilment of its stated conditions under unilateral contract law (and this is the fuzzy part - and grounds for a lot of confusion around what is a contract and what isn't, i think) or explicit (usually it is somewhat explicit to avoid a defendant in a breach of contract case arguing he had a reason to believe no contract was entered into in good faith, to avoid the possibility of a defendant arguing about selective agreement to EULA conditions, a defendant arguing that unconscionable clauses render the entire EULA invalid etc.).

These additional provisions, provisions which do not rest solely and entirely on copyright law, would be litigated as a breach of contract, or provide remedies enabled only by contract law.

Note that 'I never agreed to be bound by copyright' or 'the terms of copyright law are unconscionable therefore i did not abide by them' are not a defense against a copyright violation, ever.

I agree that any so called EUL that relied solely on the rights extended to the creator or licensor to state the terms of distribution and/or use under existing statutes would be indistinguishable from a 'pure creators rights' license like the GPL.

However, as I said before, the 'A' in EULA is the really significant difference, and I would say that if one wished to 'split hairs' then then construing an EULA that did not restrict usage rights at all would be a good example.

I think you have point, in that both EULAs and the GPL rely heavily on copyright law where they concern distribution - if you look only at this aspect then they do use the same legal mechanism, however an 'EULA' would just be a 'L' if it was entirely equivalent to a GPL style license, and the point of an EULA is to extend a copyright-based license into a contractual agreement that controls usage, along with other activities such as reverse engineering, and/or requires the licensee to waive their rights, and/or grant additional rights to the licensor of the software.

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