Enforcing the GPL...contract, license, or promissory estoppel?

Luis Villa pointed me to a paper that I had already downloaded, but had yet to read. At his prompting, I went through it this morning (My vacation had already been interrupted by a night of sick children) and though the author, Sapna Kumar of Duke University Law School, made some salient points. Her conclusion? The GPL is enforceable, but not for the reasons (or, rather, not through the means) generally held.Att

Luis Villa pointed me to a paper that I had already downloaded, but had yet to read. At his prompting, I went through it this morning (My vacation had already been interrupted by a night of sick children) and though the author, Sapna Kumar of Duke University Law School, made some salient points. Her conclusion? The GPL is enforceable, but not for the reasons (or, rather, not through the means) generally held.

Attorneys have attempted to construe the GPL as a contract. If the contract model worked, it would provide the most protection to agreements made under the GPL. But there is no way to interpret the license such that the consideration requirement is met. Even if the author receives an indirect benefit from a licensee who later releases changes back to the public, there is no meeting of minds between the two parties with regard to what constitutes consideration. The same problem exists with trying to enforce the GPL as a third-party beneficiary contract—there is no meeting of minds regarding which third party is to benefit and what the benefit is. In some jurisdictions, moreover, the fact that the third party did not give consideration to the licensor will be prohibitive. Only a nebulous argument could be made—that the software developer in the past benefited from the Open Source Community and thus wanted to name the Community as a third-party beneficiary.

Though the GPL is not a contract, it is enforceable. The Copyright Act does not require the formation of a contract in order for an author to enforce her rights against a copyright infringer. Likewise, a licensee is protected if the licensor breaches and the licensee relied on the license to her detriment. All states have adopted some variation of the Restatement (Second) of Contract’s promissory estoppel provision. Because the GPL is a failed contract, it is enforceable under state law. Treating the GPL as a failed contract prevents judges from having to distort real property legal concepts to fit the needs of a software license. It provides protection to the licensee in circumstances where the licensor attempts to wrongfully sue the licensee for copyright infringement. (207)

The problem, as Kumar sees it, is in consideration. Basically, in contract law, for a contract to be binding on both parties there has to be value going both ways. I can promise my neighbor my house in 10 years because I really like him, but if I fail to do so (and he has offered up no consideration to secure my promise), then he's out of luck. Promissory estoppel gets past this problem where the receiving party has relied on the promise of the other (to her detriment, if the promise is not kept). It's a useful way to uphold the promise of the GPL.

Anyway, the paper is well-written and well-reasoned. Might be a bit dull if you're not a lawyer or a developer (since developers seem to get into legal reasoning as much or more than attorneys :-), but it's a useful read if you want to impress your date at the cocktail reception. Or not. ;-)

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