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hugoroy | 2 years ago

Random post on the internet by what seems a a nonlawyer. Be careful.

"The AGPL, like the GPL, is a copyright licence, not a contract" actual authoriative legal source needed. For what it's worth, this is plain wrong under French law (and I'm a lawyer and there is actual case law in France to support the view that GPL is a contract).

discuss

order

f1shy|2 years ago

Not a lawyer, but as part of my degree, I had to study the relevant parts of the law for an engineer. The one thing I learned, and the teacher (lawer) was very clear about: “all is a contract”. Event two people agreeing something with a handshake, if witnesses are present, can be enforced like a written contract. So I’m extremely uncertain of the assertions made there. Also the AGPL was written with lawyers involved in the process…

frognumber|2 years ago

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.

jeroenhd|2 years ago

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.

zarzavat|2 years ago

Let’s say I use some code from stack overflow and it turns out to be GPL. Can the owner of the code sue to compel specific performance of the GPL? Probably not, since I can’t be bound be a contract I never even saw, I can be sued for copyright infringement however.

pessimizer|2 years ago

I'm pretty sure all contracts require an exchange, even if a token one. That's why there's a concept of a token payment. A contract without an exchange (a 1-sided contract) is a covenant.

A FOSS license is granting a right of use under a particular set of restrictions, and it is doing it through the means of voluntarily giving up the government-granted right to enforce copyright that the author is entitled to. But the customer is giving nothing. It can't be a contract. The violation of it only represents a loss for one side.

A license in exchange for payment is a different story.

weinzierl|2 years ago

I'm also an engineer that had to study basic law and what you described matches what I learnt. A contract requires a statement of intent[1], where the bar for this is pretty low, e.g. a handshake. So, many things are considered a contract that a layman wouldn't think of. Of course not literally everything is a contract and the question regarding the GPL here is if this minimum threshold can be considered crossed.

[1] I think this is pretty universal across legal systems, but I could be wrong.

madeofpalk|2 years ago

It's both, right? It's a contract that grants a license.

bitwize|2 years ago

In American law, a contract must have three parts: an offer, acceptance, and consideration. Consideration is something of value given in exchange for the offer in the contract.

Because there is nothing paid for a piece of open source software downloaded off the interwebs, there is no consideration. Therefore, open source licenses by themselves constitute what is known as a bare license and may be revoked at any time, for any reason, by the licensor.

bryanrasmussen|2 years ago

It looks like their main point is this one

> But this means that it is impossible for the GPL to restrict any action which you would have been legally authorized to do even if the software had not been licenced under any licence.

how would this statement be affected by French Law?

This is an actual interested question and not HN know-it-all being aggressive and trying to claim you're wrong (figured I should say it)

hugoroy|2 years ago

The analysis is wrong even if we accept the flawed premise presented (whether in US or French law).

Section 13 of the AGPL which is the one the author says is ineffective starts:

"Notwithstanding any other provision of this License, if you modify the Program, your modified version must ..."

The obligation starts from "modification" of the software, and modification of software is an act protected under copyright law. Hence you need an authorisation for it (without prejudice to fair use and copyright exceptions of course).