[twooster]

Would this be fixable by adjusting, somewhat, the terms of the GPL? If the issue is that this is a contractual violation, would it be possible to put preconditions before granting a license in the first place -- such as requiring that legal claims for both copyright violation _and_ contractual violation are explicitly allowed before the license is granted?

[user5994461]

The license already has preconditions. That's part of the problem.

To determine whether there is a violation (copyright or anything), it first requires to determine whether the conditions are respected, which first requires to determine what are the conditions, which first requires to interpret the entire contract to determine the obligations and conditions and everything on both parties.

In software terms, you've got a deadlock, can't consider copyright without considering the contract. (This plays really poorly in practice with these being different claims going to different courts).

[twooster]

It seems to me that if, e.g., mandatory arbitration clauses can be binding, then so could a precondition clause allowing particular types of torts (or disallowing particular types of defenses). I imagine it wouldn't be too hard to convince a judge that engaging in a defense explicitly disallowed by the contract in dispute isn't fair play.

I guess the question is whether you can have preconditions at all on blanket licenses?

For example, if I say "anyone who sends me, by registered mail, a check for 50 EUR will be granted a license", and someone just uses my code without even attempting to send the check, is that copyright violation or contractual violation? It seems to me that would be a copyright violation, or else all copyright violations are just latent contract violations, in their most absurd extents ("I didn't sign the licensing contract they offered, but because they offered one at all, it's a contractual violation" seems to be a particularly weak defense).

[user5994461]

Arbitration clauses aren't binding. It's a perfect example of something that is very common and abused in the US, yet has zero bearing in the rest of the world. ^^

A clause that tries to define particular types of torts/defenses is a prime example of clause that is immediately void across the world, because it tries to redefine the law. Contrary to what you think, the judge cares little what is written in the contract, the judge mainly applies the law.

P.S. The GPL is not a blanket license. It's a contract in the US too. I shall make a follow up article on contract vs license because there is a lot more to cover about that.

[webmobdev]

In my opinion no. France doesn't recognize copyright for software the same way the US does. And since an end user agreement is essentially a generic one-sided contract, the court can reject any clauses that it feels is over reaching.

[bluGill]

This case has both parties in France so the courts will probably rule that the license was made in bad faith since it isn't valid in France, I have no idea what the court will do after that. (in the US the courts will look down on a license made in bad faith, I have no idea about France)