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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RE[2]: If you want it in one line
by IkeKrull on Mon 28th Sep 2009 20:19 UTC in reply to "RE: If you want it in one line"
IkeKrull
Member since:
2006-01-24

Yeah, but the GPL is... a usage and distribution license, and therefore, a civil contract. That's what you guys are missing. A violation of the GPL is not directly a violation of copyright: it is a violation of a license that is granting you the privilege of using (and copying and distributing) covered software.


Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.

The GPL doesn't purport to cover usage of software, and this is the key difference between a EULA and the GPL. The GPL relies solely and totally on copyright law for its scope and remedies - the GPL has no relevance, or application where copyright law would not otherwise apply.

An EULA purports to restrict your usage of the work, and not merely its distribution - aspects that copyright law and other statutes have limited applicability to.

The fact that it is possible to engage in usage of a work that is a violation of an EULA, that would be legal in the absence of the EULA is the key difference.

The GPL is different. If it would not be a copyright violation in the absence of the GPL, it is not a potential GPL violation, and if it is a GPL violation, it is a copyright violation. How much more direct can you get?

Reply Parent Score: 1

boldingd Member since:
2009-02-19

Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.


That's a false statement -- or, I suppose, a misleading one. The reason that distributing a covered work outside the terms of the GPL is a copyright violation is because the GPL grants you a conditional license to use and copy the covered work. But it's still a license, and the original creator still maintains copyright. The way that copyright kicks in when you violate the GPL isn't that different from the way that it would kick in if you used or distributed commercial software in violation of its EULA -- let's not forget that copyright is also the reason that it's illegal to re-distribute commercial software in violation of it's EULA.

The GPL doesn't purport to cover usage of software, and this is the key difference between a EULA and the GPL.


It does, actually:
2. Basic Permissions.

All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are met. This License explicitly affirms your unlimited permission to run the unmodified Program. The output from running a covered work is covered by this License only if the output, given its content, constitutes a covered work. This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.

You may make, run and propagate covered works that you do not convey, without conditions so long as your license otherwise remains in force. You may convey covered works to others for the sole purpose of having them make modifications exclusively for you, or provide you with facilities for running those works, provided that you comply with the terms of this License in conveying all material for which you do not control copyright. Those thus making or running the covered works for you must do so exclusively on your behalf, under your direction and control, on terms that prohibit them from making any copies of your copyrighted material outside their relationship with you.

Conveying under any other circumstances is permitted solely under the conditions stated below. Sublicensing is not allowed; section 10 makes it unnecessary.


Emphasis mine. Granted, it doesn't have much to say about usage, but it does indeed cover the topic. Section... 9, I think, is also pertinent, and I'll edit it in later.


The fact that it is possible to engage in usage of a work that is a violation of an EULA, that would be legal in the absence of the EULA is the key difference.

The GPL is different. If it would not be a copyright violation in the absence of the GPL, it is not a potential GPL violation, and if it is a GPL violation, it is a copyright violation. How much more direct can you get?


The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.

Edited 2009-09-28 21:18 UTC

Reply Parent Score: 1

IkeKrull Member since:
2006-01-24


The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.


But they aren't using the same mechanism. An EULA relies on it being intepreted as a contract that must be agreed to - EULAs purport to restrict user actions that would otherwise be legal.

This is not something you can just make a statement on and have it binding under the law.

The 'A' in 'EULA' is pretty important here. The GPL is not an agreement.

The GPL is nothing more than an iron-clad defense against copyright action by the licensor - there is nothing in the GPL that requires acceptance, it is only a statement of permission you can assume the author has granted, and only as valid as the authors own claims to the covered work.

Reply Parent Score: 1

lemur2 Member since:
2007-02-17

The point that I have repeatedly tried to make is that, both the GPL and EULA are the same type of thing, using the same legal mechanism. Both are conditional licenses for use (and in, in the GPL's case, distribution and modification) of software, with enforcement substantially provided through a copyright regime. The fact that the GPL is a permissive license doesn't make it any less a software license.


Well, you are corrrect in one sense, in that the GPL is a license.

Absolutely.

Your problem seems to be in understanding what that means. A license is a legal document that gives the holder permission to do something that otherwise he/she would not be allowed to do.

http://www.google.com.au/search?hl=en&source=hp&q=define%3A+lic...
a legal document giving official permission to do something


That is it. That is all that the GPL is. It is a legal document that gives the holder permissions to do some things, under some defined conditions.

A EULA, OTOH, is more than that. A EULA is a license, true, but it is also an agreement or contract. You have to agree to it. It imposes restrictions as well as granting permissions. The restrictions it imposes are not imposed by copyright law, they are imposed by the EULA contract.

The GPL is totally unlike a EULA in this respect. The GPL is a license and a license only. The GPL is "a legal document giving official permission to do something". That is the entire extent of it. The GPL is not an agreement, and it is not a contract, it is a license ONLY.

Reply Parent Score: 2

lemur2 Member since:
2007-02-17

Any distribution of GPLed software outside the GPLs stated terms is automatically a copyright violation.


This is true ONLY if one is relying on the permissions that the GPL grants in order to distribute the work.

If one wanted to use some software that was GPL in one's own proprietary closed-source product, that is entirely possible by going to the copyright holder (most often this is the author) and obtaining permission outside of the GPL.

The GPL license doesn't cover this. This involves another sort of license, a commercial license for the source code. There is a lot of source code available that is dual-licensed like this.

Obtaining a commercial license for the code, so that one can use it in one's own closed-source commercial product, would normally involve PAYING the author for the permission to do so.

Doing this without permission, without paying the author for that permission, is stealing the code. Copyright law says so.

For those who champion closed-source software, what is actually wrong with that concept?

Edited 2009-09-29 01:18 UTC

Reply Parent Score: 2