[jeroenhd]

What constitutes as a contract can depend on the legal system at play. Even in western legal systems, the English, French, and German based approaches to law can have different implications when it comes to philosophical questions like "are licenses contracts". As far as I know, GPLv2 is considered a contract under these legal systems, but I'm not lawyer.

AGPL and most GPL derivates were certainly made with the help of lawyers, but those lawyers overwhelmingly studied American law, since that's where these licenses came from. They can be used in other countries of course, but they are full of American legalese. Direct translations do exist but they don't alter the words to accomplish the same effect under different systems of law. For example, the vitality of GPLv2 does not apply in Germany: https://cms-lawnow.com/en/ealerts/2022/01/developments-in-op... and GPLv3's punishment clause protecting violators for their first incompliance, without further punishment, was denied: https://blog.versioneye.com/2015/09/21/judgment-to-gpl-viola...

The exact same legal text can have an entirely different meaning when interpreted by a foreign judge in another country. What is a watertight contract in one place, is a breach of a party's freedoms in another. There's a reason the exact text written in treaties is argued over for years, because it's challenging to express what you want to say in a way that's legal for every party's jurisdiction.

[denton-scratch]

> "are licenses contracts"

IANAL. But, obviously, a license is a license, and a contract is a contract.

If I produce a copyrighted work, you can't copy it without my permission, which is what a license is. If I grant you a license, I can require that you do something for me in return (e.g. pay me), and I can restrict what you can do with your copies. That's a contract, and if you violate it's terms, you might lose the license.

What did I miss?

[mqus]

In the german context, everything that is agreed upon with two or more parties is a contract (afaik, I'm not a lawyer). Buying something => (implicit) contract. agreeing to cookies => contract. T&C on a website => contract. Borrowing something from a friend => (very implicit and vague) contract.

accepting a license (maybe implicitly by downloading content) => contract.

Lawyers and courts then decide if certain clauses are ok and valid or not, if and when someone sues. I'm not sure what differences you see between contracts and licenses. In Both cases, both parties have obligations and responsibilities to follow, in return for a gain (or sometimes no gain).

[ralferoo]

> I'm not sure what differences you see between contracts and licenses.

The licence is the permission to do something that without the licence you would not be permitted to do.

The contract is the agreement between the licensor and licensee as to the specific terms that surround the granting of that licence.

Consider a company licensing music - company A and B might both have an identical licence to use a particular song for any purpose, but the contracts they agreed for payments could be very different based on expected usage.

Breaking the terms of the licence is using the thing in a way that the licence doesn't expressly permit, e.g. if you have a licence to use any song from a company's entire catalogue for a TV show, but you then use it for a different show or in a film. Another example: I've worked on a computer game where we had a licence to use a particular song in-game, but not in promotional material.

Breaking the terms of the contract is failing to uphold your obligations, e.g. failing to pay an agreed annual fee or the correct amount of royalties.

[throw_m239339]

> I'm not sure what differences you see between contracts and licenses

In some countries, the difference is the kind of court or tribunal that is involved in the dispute.

[gamblor956]

You missed the part where a license is a type of contract...

A copyright license is a contract, wherein the copyright owner agrees to allow a third party the use of their copyrighted material in exchange for [X]. X might be money, or it might be an agreement to limit how the copyrighted material is used. There isn't another document or anything that says "License to Use [Copyrighted Material]",

This means that losing the "license" is the same as saying you no longer have an agreement allowing you to use the copyrighted material.

[jkaplowitz]

I agree with your general point (and I upvoted), but I think the author of both of your links misunderstands how even American courts would apply the GPL.

As to the first link:

When a person redistributes a GPLed program or a derivative work of one and refuses to share the source code with their recipients, there is a reason even most American GPL lawsuits are brought by or with delegated authority from a copyright holder of the original work. A regular recipient with no copyright claim might not have as strong of a claim to standing, especially if the defendant claims not to have consented to the GPL in the first place.

Without consent to the GPL, or even if the GPL is breached after valid consent, it’s entirely possible that the consequences imposed by an American court will be damages for copyright infringement and an injunction against further distribution of the infringing work without further copyright holder permission. It is not automatic that source code sharing, which would be an example of what’s called specific performance, will be ordered. It’s only one tool in a court’s toolbox of remedies, and a relatively disfavored one (especially in cases like this where unrelated corporate trade secrets might be exposed by such an order or where conflicting third-party licenses might actually forbid compliance).

The reason some level of source code sharing often results from these lawsuits is not because of a clear legal right to demand that a court order it, but because defendants usually prefer to comply than pay damages and suffer an injunction against further infringement, and plaintiffs in GPL lawsuits usually prefer to forgive past infringements in connection with obtaining compliance.

As to the second link:

The approach of American courts to this circumstance would likely vary by state. The GPLv3 doesn’t actually say that the penalties for the first violation are waived if the violation is cured within 30 days, and the wording for what it does say in this provision isn’t ambiguous, so some American courts would limit their analysis to the “four corners” of the contract/license and not infer a waiver of the penalties for the first violation any more than did that German court.

Other American courts would accept evidence of what the licensor or the license author intended, and therefore possibly waive those penalties in case of a timely cure.

(When I say “some American courts” or “other American courts”, it’s really a matter of which state’s law applies more than which court. But which court is actually making the ruling may literally matter when the relevant point of the relevant state’s law has not been clearly settled by that state’s highest court, when that highest state court is considering reversing its own prior ruling, when it’s unclear which state’s law should apply, or when the court makes mistakes in inexpertly applying the law of a state whose law it doesn’t often apply.)

A lot of people assume that more of the GPL has been authoritatively interpreted in court than is actually true. Most GPL compliance disputes never make it to court, and some that do end in settlements. Only very few end in final rulings, and most of those are lower courts or mid-level courts which in no way (beyond potential persuasive value) bind the rulings of other judges within the state or country.

Disclaimer for this entire comment:

I am not a lawyer in any country and am not giving any specific advice here about how any specific court would rule in any specific case. I have however attended the beginning of US law school including the introductory contracts law course, and have also collaborated in the past with lawyers specialized in the area of free and open source software as part of my Debian developer activities and my director and officer roles in the free software nonprofit Software in the Public Interest (SPI), as well with similarly specialized lawyers when I was in an open source-focused technical role at Google.

To avoid confusion, I hold no current director or officer role with SPI and am currently entirely inactive in Debian, though I officially remain a Debian developer and a non-contributing member of SPI. I also no longer work for Google. I am only speaking for myself here and not for Debian, SPI, or Google. I mention my past work with them only as relevant context informing my comments above.

[Kinrany]

Is it possible to have the contract be explicitly split into two wordings, one for each legal system?

[patmorgan23]

Probably not. It's so much easier to choose one jurisdiction and do everything there. For multinationals they'll set up a legal entity in each jurisdiction and rewrite their agreements to be compliant in each place.

International law sucks and it's 100x more expensive than enforcing a domestic agreement.

[eru]

That probably depends on the legal systems in question.

[jkaplowitz]

There are more than two legal systems in the world.

[hnfong]

I think the GP was assuming there's only two parties to a contract, thus only two jurisdictions need to be considered.

[jkaplowitz]

And yet, free and open source software licenses are meant for licensors and licensees from around the world, so far more than just two jurisdictions for any of the common licenses, and rarely for only one or two jurisdictions even for more custom licenses except in the case where the license is different per jurisdiction or where almost all (licensor, licensee) pairs are in one or two jurisdictions.

[Kinrany]

Yep