It could turn out that copyright is only enforceable if it involves payment or authorship.

So if you don't sue to get paid or to get attribution you don't have a case. This way GPL would be unenforceable.

In which case you would not have any license to use or distribute the software.

But that's not something this decision was about, this was just about missing attribution. I can't imagine that anyone seriously thought that the attribution clause of the GPL wouldn't be enforceable.

There are some other aspects of the license which I would've found much more interesting to be tested in court, especially the FSF's concept of treating dynamically linked executables as derived works and the question who can sue if no source code is provided.

> It could turn out that copyright is only enforceable if it involves payment or authorship.

That would make any gift of copyrighted material invalid.

In some countries such copyright assignments are in fact invalid.

Germany had to amend the law back in the day to make Open Source legal.

Before that it wasn't possible to forgoe payment and even now it's not possible in many cases.

do you have a reference to that law change?

as far as i know only the moral rights can not be given up, but i am unaware that there was an issue with giving away work for free.

Contracts typically require consideration. It is important part of contract law.

There are lot of nuances what constitutes consideration, it varies by jurisdiction and also there is lot of common law ( i.e. based on judicial precedents ) that can be complicated and only experts could really could even a given opinion on that and only way to be really know is after that issue comes up in a case for first time in that jurisdiction.

That's not true in most of continental Europe, nor in Quebec (Canada), since their legal system has a different origin than what you're describing.

Using Quebec's terminology by way of example, a contract where an advantage is given in exchange for rendering the obligation (so roughly a contract with consideration) is called an onerous contract, and most typical contracts for services fall into this category. The kind where one obligates oneself without receiving an advantage in return is called a gratuitous contract, and they classify gifts in this category.

IANAL, but as far as I know consideration is usually a feature of common law not civil law.

Correct. As per my direct reply to the person you're responding to, the kind of concept that's analogous to a contract with consideration is called an onerous contract and the kind that lacks it is a gratuitous contract. (Quebec terminology; it's a standard continental European style civil law system with its ultimate main origin in the Custom of Paris which governed most French colonies until 1763.)

I found an article on the german Wikipedia

https://de.m.wikipedia.org/wiki/Linux-Klausel

The referenced article is §32 UrhG

thank you. so it wasn't that it was not possible to give away stuff for free but rather that there was a proposal to change the law which would have made it difficult, if not impossible, and as a result the added clause ensured that it would remain possible, at least as long as it is given to the general public.

You can still sue to get paid for the GPL. Some projects (e.g. Qt) make money off of licensing GPL software. Damages could be counted either in terms of lost license fees or the cost it would have taken the infringer to write code to achieve the same function as the infringed code.

This multi licensing is rare compared to all the GPL-only (or comparable open source license) projects.

I's basically a big fuck you to anyone who does not commercializes his software but wants to contribute to the software ecosystem and only expects users to also contribute back to it.

Maybe we need a GPL4 with a building nuke. "You agree to pay 1 Trillion dollars if you do not publish your changes".

> I's basically a big fuck you to anyone who does not commercializes his software but wants to contribute to the software ecosystem and only expects users to also contribute back to it.

The problem here is that "user contributions" are basically impossible to value. Who knows what they might have contributed, and what value others may be able to derive from those contributions. I can't think of a single good way to translate that into dollars. You could charge engineer hours, but who knows how many they would have contributed.

> Maybe we need a GPL4 with a building nuke. "You agree to pay 1 Trillion dollars if you do not publish your changes".

I hope this is in jest, because I fear something like that would chase off open source developers.

I do think it could use a penalties clause. I would suggest something in the net revenue or profit category. It makes the penalty scale, including scaling down to 0 for other open source projects. I don't want to encourage open source projects ignoring licenses, but I do think suing them for money seems unfair when the currency of open source is really contributions.

> You could charge engineer hours, but who knows how many they would have contributed.

I would guess courts have ways of determining this, perhaps via subject matter experts. It's not like GPL software is the only kind of software for which it might be impossible to obtain a proprietary license - there are probably many cases of proprietary software copying from other proprietary software, where one party isn't willing or able to provide a license to another (for instance, a company might be competing in the same space as another that copied their code, so they're unwilling to provide a license). But more likely a settlement would be reached in a case of clearcut copyright infringement.

That would hamper all kinds of commercial activities though, as it would effectively make free trials impossible.

It also sounds like it would be a pretty radical change to how copyright laws work, but I’m no expert here.

If the author is effectively payed trough the (expected) purchase later on its probably fine. Or if the author is an employee and gets a salary

I agree. There's a lot of buzz about how "it's never been proven in court" and all that, but open source software licensing is so cut and dried at this point that it just ends up sounding silly. If having a license.md file in your source code isn't enforceable, then how do multi-billion dollar apps get away with hiding their terms of use behind several clicks and thousands of lines of incomprehensible legal jargon? It would certainly be fun to watch Big Tech hire their gold-medal mental gymnasts to fight it in court, if nothing else.

There are probably thousands of terms of service agreements that are not legally binding in the EU.

https://europa.eu/youreurope/citizens/consumers/unfair-treat...

For example, in 2012 the Court of Justice of the European Union declared that reselling digital software is legal no matter what any EULA attached to the software might say.

https://www.engadget.com/2012-07-03-eu-court-rules-its-legal...

Another, rather surprising example, is that while almost every proprietary EULA has clauses prohibiting it, reverse engineering, including decompilation, is legal regardless of EULA terms in the EU for several purposes, including interoperability and, apparently, fixing bugs.

That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Only the parts of the agreement that violate the local laws can be ignored.

> That doesn't make the terms and agreements any less binding, though. Parts of them are bullshit and ignored, but the other parts are still valid.

Different people have different ideas of what is reasonable and what is bullshit. Different jurisdictions as well, which is why some clauses in EULAs written by American lawyers are invalid in the EU.

> Only the parts of the agreement that violate the local laws can be ignored.

That is the whole point: to know for sure which ones you can ignore, you need to test them in court.

USA is a special case, because they have a whole moral rule "fake it till you make it" to the point that it works in courts sometimes, and then everybody is the infinite future are screwed because of the precedent law until the supreme court fixes it.

Wouldn't that only (reliably) be the case if they contain a severability clause stating that, if any clause is found to be invalid, the rest of the license agreement shall remain valid?

After all, you're typically agreeing to a package, not individually to each term.

Indeed in German law a partially void contract becomes completely void unless it is protected by a severability clause (which means in practice all contracts have them and they usually state that the void part is to be replaced by something with the same or similar economic consequences).

Standard form contracts (take it or leave it rules that are distributed to everyone) are exempt from this though (here the void part falls back to default rules).

Indeed, the normal threshold for whether a contract was/is an AGB (stnadard form contract; allgemeine geschaeftsbedingungen = general rules of business ~ TOS) is whether it was practically negotiable.

No, that effectively enables scams. To prevent scams courts disallow using inability to enforce unlawful clause as a reason to terminate the contract. You typically buy goods, not contracts.

If I buy the latest superman film on DVD and play it, technically I'm making a copy. I don't have to agree to a license to do this, as it wouldn't be a breach of copyright law to make a transitory copy myself for the purposes of using it. I can't copy it to give to someone else though, that would be against copyright law.

Likewise if I take some GPL software, I can do whatever I want with it to run it, including copying it into memory. I can't give a copy to anyone else (including derivative works such as a binary) without agreeing to the GPL.

> Likewise if I take some GPL software, I can do whatever I want with it to run it

That's true, but unlike the DVD case it's so only because the GPL license explicitly grants you this right. If it didn't, you wouldn't be able to run it at all.

Based on what?

Based on copyright laws. Here in Poland you can even download a copyrighted movie or a song as long as you don't distribute it; you can't however use any software without a license that lets you do it. The GPL licenses explicitly do ("This License explicitly affirms your unlimited permission to run the unmodified Program.").

GPL is actually kind of a special case when it comes to licenses since it mostly cares about redistribution in order to implement its copyleft mechanism, but generally licenses are tools used to give users permission to use the software under specified conditions. Without a license (written or verbal), there's no permission to do anything whatsoever.

You may be confusing it with using a self-modified copy of code under GPL. Since GPL only cares about sharing the modified source with actual users, you won't have to share your modifications with anyone as long as you remain the only user of that modified work.

>there's no permission to do anything whatsoever

What happens if you do?

You're violating the copyright. In practice, usually nothing until the copyright holder decides to sue you for damages or it gets found during some inspection (but the latter is mostly applicable to companies).

Unsurprisingly I'm not familiar with the ins and outs of Polish copyright law, but in other countries the act of copying something into memory to use it (say copying a frame of video into a frame buffer on a DVD) is not a breach of copyright.

Neither it is in Poland (which you would already know if you read what I wrote more carefully).

There was a lot of FUD being spread about supposed non enforceable quality of license.

> It would have been weird if they had been unenforceable.

Well, this is a joke decision since no one will verify whether they actually remove the code.

If someone somehow knew they were using GPL code before the suit, they can easily do the same check after the suit

GPL code can be obfuscated in final products, the code itself would need to be audited for the inclusion of GPL code.

That's not really how it works.

Obfuscation is trivial.

there's a healthy overlap between the people who think that open source licenses are unenforcable, and the people who think masks don't work.

Its almost all based on "I wish", and not "these fact"

I haven’t run a full study, but I have found the opposite amongst people I know: a large overlap between the people who moan about their freedoms being taken away by vaccine mandates and those who moan about the ideological purity of Free Software.

If you see things only in black and white and everything is a crusade, then you don’t care much about facts. I would guess that this is the result of the same mechanisms that prime a conspiracy theorist to see conspiracies everywhere.

RMS is definitely a hypermasker and covid-worrier.

Stallman is an a well known outlier, it's a definitely visible correlation that blue people hate free software.