[frognumber]

Under US law, a license is different than a contract. The GPL and friends are very explicitly NOT contracts (in contrast to EULAs, which try to be).

Which is super-helpful only if you never intend to leave the US.

Most software has users in 200+ jurisdictions, and you can get sued in almost any of them. A court in the Maldives or New Zealand might have a very hard time enforcing a judgment if your legal presence is only in the US, but outstanding judgments can mean:

1) A cap on growth (you can never establish a presence in those jurisdiction until / unless you've resolved you ballooning liabilities)

2) A cap on acquisitions (you can never be sold to or buy an organization with a legal presence there, again, without work)

3) In a worst-case, if the liability is bad, being personally thrown in prison the instant you step off of a plane in a jurisdiction where you have outstanding liabilities.

... and other badness.

It, therefore, often make sense to avoid walking along the edge cases of the law.

[hnfong]

> The GPL and friends are very explicitly NOT contracts

The FSF and friends have very explicitly commented that the GPL is not a contract. (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.) There's nothing explicitly saying so in the GPL text, and the section saying that if you don't accept the "license" you will be in violation of copyright law can actually be read both ways (IMHO).

If you search around, quite a few jurisdictions have apparently ruled that the GPL can be treated as contract. Even the US, maybe: https://qz.com/981029/a-federal-court-has-ruled-that-an-open... (note: take conclusion with a grain of salt). From a common law perspective though, there's really no reason to not consider the GPL a contractual license..

That said, I honestly don't know what's worse -- breach of contract or breach of copyright law. The latter can sometimes carry criminal consequences (and yes, you can be extradited if you are unlucky), while a court ordering performance of contractual obligations can be bad if it's really inconvenient for the business.

[frognumber]

> The FSF and friends have very explicitly commented that the GPL is not a contract.

One of the interesting pieces of law is that in a situation like this one, the intent of the drafter is strongly taken into account. The FSF says it's not a contract, publicly and vocally. That will be used in any court, and a court is very unlikely to overturn that.

> (In my experience, they are also rather sloppy lawyers in the sense that they tend to put ideology over positive law.)

I can't speak for FSF lawyers in general, but Eben Moglen, who drafted this language, is a super-careful lawyer.

[User23]

Once you’ve lawfully obtained code you don’t need a license to run it in the USA. The Copyright Act explicitly gives you the right to make additional copies necessary (like loading into memory) to execute it so no license is required to run it.

Much like most lease agreements that are full of illegal or inoperative clauses, EULAs are largely a bluff backed not by the law but the other party’s ignorance and the threat of a ruinous lawsuit. The process is the punishment.

Of course once you want to redistribute or create derivative works you need additional permission.

[frognumber]

It's more complex. EULAs /were/ a bluff when originally created, and would never have stood up in a 1990-era court. In 2020, it's more complex. Courts try not to disrupt the status quo. After 3 decades of industry practice, failing to enforce an EULA would do that. Ergo, recent Courts have often upheld EULAs as contracts...

https://toslawyer.com/are-end-user-license-agreements-enforc...

https://www.mertzel-law.com/post/click-here-are-your-eula-an...

But not all EULAs.

[hiatus]

> Under US law, a license is different than a contract. The GPL and friends are very explicitly NOT contracts (in contrast to EULAs, which try to be).

Why are EULAs contracts and the GPL is not?

[gamblor956]

He's wrong.

Under U.S. law, a license is a contract. In fact, an EULA is an "end user license agreement."

The difference between a license like the AGPL and a normal contract is in how the contract is formed. Normally a contract requires explicit acceptance to be valid, but for licenses implicit acceptance is allowed, such as by using the licensed material after having been showed the license governing the use of that material.

[frognumber]

A few reasons:

1) A contract requires a meeting-of-the-minds around an agreement. For an EULA, you click [I agree].

2) A contract requires consideration. With an EULA, there is generally clear consideration exchanged.

3) It's called an "agreement" whereas the LGPL/GPL/AGPL is very careful never to do that or to ever say "agree"

4) the drafters stated it's not an agreement

... and so on. In other words, every effort is made into making EULAs act as contracts, and the opposite for FSF licenses.

More background: https://www.gnu.org/philosophy/enforcing-gpl.html

Excerpt for where to start reading: "This right to exclude implies an equally large power to license—that is, to grant permission to do what would otherwise be forbidden. Licenses are not contracts: the work's user is obliged to remain within the bounds of the license not because she voluntarily promised, but because she doesn't have any right to act at all except as the license permits."