GPL Has No Legal Basis To Exist

September 26, 2007

There’s a lot of talk about a certain case in the US which is destined to be possibly the first court to test the enforceability of GPL in the US ever.

So, with a lot of discussion on slashdot and with all the blow hard-ed-ness of GPL talk for the past too many years, maybe its time for a moment of truth and a moment of silence.

The blog you are reading right now, will be the definitive word on GPL enforcement, forever more. And its so simple, just like Iraq’s WMD that never was, the obviousness in the illegality of the GPL will reveal itself as simply as a speeding law reveals itself to a reckless teenager in his fathers rusty Ford on a dimly lit highway on a Saturday night by a bored cop. Why?

There is no law of the land in the US or anywhere Im familiar with that granted the GPL licensor the ability to restrict usage of ANY artifact of software after its initial free distribution. A license has to have a basis in standing law.

Take a bubble bath. I suggest candles, let it sink in.

There are only 2 areas of law which could possibly pertain to a software work in the US. Copyright and Patent. No other law outside those laws exists to protect intellectual property besides breach of contract. So lets address the first 2…first

Many GPL protagonists have suggested that the GPL is just an addition to the copyright law. Unfortunate because only the US congress can amend the US copyright law. And one of the tenets of US copyright law is that you clearly claim ownership for your work. You cannot sue for copyright infringement under the GPL. US copyright laws protect works based on the details of US copyright laws. Citizen groups and lawyers cannot make up funny licenses and then use copyright law as a shield.

Honestly, if you have a copyright dispute I hope you copyrighted your work, can show to the court that you intended to protect it under US copyright law, keep it out of the hands of the infringer and that you are suing for copyright. If you simultaneously tried to con people into a separate license (GPL?) your copyright claim will likely go unheard or unheeded.

Secondly, forget patent law, has nothing to do with GPL.

So we move on to GPL infringement. While this is a great topic its unfortunate that no law exists on the US books thats grants the alledged “licensor” the legal right to give something away freely and then force the new owner to abide by its rules.

This simply does not exist in US law. Posession is 9/10s of the law and always will be. Copyright and patent laws are extensions of the laws of POSSESSION or property. A foundation of legal systems worldwide. Giving something away and then claiming rights to how its used does not exist in our legal system. And it certainly aint copyright. So I guess GPL lawyers will have to convince judges to rewrite US intellectual property laws. Very unlikely.

So that brings us to the legal muck of breach of contract.

Well, there’s some similarities here. Why? Because all laws of infringement, imply ownership or a contract. No contract has been signed in regards to GPL and no explicit ownership has been claimed. (If it were it would be copyright). There are also no signatures in any of these agreements. Any reasonable judge would look to the gravity behind the claim that someone owned something, how hard did they work to protect their property and what legal standing did they have to require another to act in a certain way if they clearly permitted by their actions all and any use without oversight.

The GPL Im afraid in legal terms will even in its most laboredly argued cases be considered a contestant who gave up their rights only to try and reclaim them later with no basis in law. And its just as well, the “grantors” of open source licenses by any measure of ownership considered viable in the world dont really care what happens to their code.

And thats what a judge and jury will rule. Because the judge and jury AINT FROM SPACE.