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