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diff --git a/talermerchantdemos/blog/articles/en/enforcing-gpl.html b/talermerchantdemos/blog/articles/en/enforcing-gpl.html new file mode 100644 index 0000000..e440c0e --- /dev/null +++ b/talermerchantdemos/blog/articles/en/enforcing-gpl.html @@ -0,0 +1,232 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.77 --> +<title>Enforcing the GNU GPL +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/enforcing-gpl.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Enforcing the GNU GPL</h2> + +<p>by <a href="http://moglen.law.columbia.edu/"><strong>Eben Moglen</strong></a></p> +<p><em>10 September 2001</em></p> + +<p>Microsoft's anti-GPL offensive this summer has sparked renewed +speculation about whether the GPL is “enforceable.” This +particular example of “FUD” (fear, uncertainty and doubt) +is always a little amusing to me. I'm the only lawyer on earth who +can say this, I suppose, but it makes me wonder what everyone's +wondering about: Enforcing the <a href="/licenses/gpl.html">GPL</a> is +something that I do all the time.</p> + +<p>Because <a href="/philosophy/free-sw.html">free software</a> is an +unorthodox concept in contemporary society, people tend to assume that +such an atypical goal must be pursued using unusually ingenious, and +therefore fragile, legal machinery. But the assumption is faulty. The +goal of the Free Software Foundation in designing and publishing the GPL, +<em>is</em> unfortunately unusual: we're reshaping how programs are made in +order to give everyone the right to understand, repair, improve, and +redistribute the best-quality software on earth. This is a transformative +enterprise; it shows how in the new, networked society traditional ways of +doing business can be displaced by completely different models of +production and distribution. But the GPL, the legal device that makes +everything else possible, is a very robust machine precisely because it is +made of the simplest working parts.</p> + +<p>The essence of copyright law, like other systems of property rules, is the +power to exclude. The copyright holder is legally empowered to exclude +all others from copying, distributing, and making derivative works.</p> + +<p>This right to exclude implies an equally large power to +license—that is, to grant permission to do what would otherwise +be forbidden. Licenses are not contracts: the work's user is obliged +to remain within the bounds of the license not because she voluntarily +promised, but because she doesn't have any right to act at all except +as the license permits.</p> + +<p>But most proprietary software companies want more power than copyright +alone gives them. These companies say their software is +“licensed” to consumers, but the license contains +obligations that copyright law knows nothing about. Software you're +not allowed to understand, for example, often requires you to agree +not to decompile it. Copyright law doesn't prohibit decompilation, +the prohibition is just a contract term you agree to as a condition of +getting the software when you buy the product under shrink wrap in a +store, or accept a “clickwrap license” on line. Copyright +is just leverage for taking even more away from users.</p> + +<p>The GPL, on the other hand, subtracts from copyright rather than adding to +it. The license doesn't have to be complicated, because we try to control +users as little as possible. Copyright grants publishers power to forbid +users to exercise rights to copy, modify, and distribute that we believe +all users should have; the GPL thus relaxes almost all the restrictions of +the copyright system. The only thing we absolutely require is that anyone +distributing GPL'd works or works made from GPL'd works distribute in turn +under GPL. That condition is a very minor restriction, from the copyright +point of view. Much more restrictive licenses are routinely held +enforceable: every license involved in every single copyright lawsuit is +more restrictive than the GPL.</p> + +<p>Because there's nothing complex or controversial about the license's +substantive provisions, I have never even seen a serious argument that the +GPL exceeds a licensor's powers. But it is sometimes said that the GPL +can't be enforced because users haven't “accepted” it.</p> + +<p>This claim is based on a misunderstanding. The license does not require +anyone to accept it in order to acquire, install, use, inspect, or even +experimentally modify GPL'd software. All of those activities are either +forbidden or controlled by proprietary software firms, so they require you +to accept a license, including contractual provisions outside the reach of +copyright, before you can use their works. The free software movement +thinks all those activities are rights, which all users ought to have; we +don't even <em>want</em> to cover those activities by license. Almost +everyone who uses GPL'd software from day to day needs no license, and +accepts none. The GPL only obliges you if you distribute software made +from GPL'd code, and only needs to be accepted when redistribution occurs. +And because no one can ever redistribute without a license, we can safely +presume that anyone redistributing GPL'd software intended to accept the +GPL. After all, the GPL requires each copy of covered software to include +the license text, so everyone is fully informed.</p> + +<p>Despite the FUD, as a copyright license the GPL is absolutely solid. +That's why I've been able to enforce it dozens of times over nearly ten +years, without ever going to court.</p> + +<p>Meanwhile, much murmuring has been going on in recent months to the +supposed effect that the absence of judicial enforcement, in US or other +courts, somehow demonstrates that there is something wrong with the GPL, +that its unusual policy goal is implemented in a technically indefensible +way, or that the Free Software Foundation, which authors the license, is +afraid of testing it in court. Precisely the reverse is true. We do not +find ourselves taking the GPL to court because no one has yet been willing +to risk contesting it with us there.</p> + +<p>So what happens when the GPL is violated? With software for which the +Free Software Foundation holds the copyright (either because we wrote +the programs in the first place, or because free software authors have +assigned us the copyright, in order to take advantage of our expertise +in protecting their software's +freedom), <a href="/licenses/gpl-violation.html">the first step is a +report</a>, usually received by email +to <a href="mailto:license-violation@gnu.org"><license-violation@gnu.org></a>. +<a href="/licenses/gpl-violation.html">We ask the reporters of +violations to help us establish necessary facts</a>, and then we +conduct whatever further investigation is required.</p> + +<p>We reach this stage dozens of times a year. A quiet initial contact is +usually sufficient to resolve the problem. Parties thought they were +complying with GPL, and are pleased to follow advice on the correction of +an error. Sometimes, however, we believe that confidence-building +measures will be required, because the scale of the violation or its +persistence in time makes mere voluntary compliance insufficient. In such +situations we work with organizations to establish GPL-compliance programs +within their enterprises, led by senior managers who report to us, and +directly to their enterprises' managing boards, regularly. In +particularly complex cases, we have sometimes insisted upon measures that +would make subsequent judicial enforcement simple and rapid in the event +of future violation.</p> + +<p>In approximately a decade of enforcing the GPL, I have never insisted on +payment of damages to the Foundation for violation of the license, and I +have rarely required public admission of wrongdoing. Our position has +always been that compliance with the license, and security for future good +behavior, are the most important goals. We have done everything to make +it easy for violators to comply, and we have offered oblivion with respect +to past faults.</p> + +<p>In the early years of the free software movement, this was probably the +only strategy available. Expensive and burdensome litigation might have +destroyed the FSF, or at least prevented it from doing what we knew was +necessary to make the free software movement the permanent force in +reshaping the software industry that it has now become. Over time, +however, we persisted in our approach to license enforcement not because +we had to, but because it worked. An entire industry grew up around free +software, all of whose participants understood the overwhelming importance +of the GPL—no one wanted to be seen as the villain who stole free +software, and no one wanted to be the customer, business partner, or even +employee of such a bad actor. Faced with a choice between compliance +without publicity or a campaign of bad publicity and a litigation battle +they could not win, violators chose not to play it the hard way.</p> + +<p>We have even, once or twice, faced enterprises which, under US +copyright law, were engaged in deliberate, criminal copyright +infringement: taking the source code of GPL'd software, recompiling it +with an attempt to conceal its origin, and offering it for sale as a +proprietary product. I have assisted free software developers other +than the FSF to deal with such problems, which we have +resolved—since the criminal infringer would not voluntarily +desist and, in the cases I have in mind, legal technicalities +prevented actual criminal prosecution of the violators—by +talking to redistributors and potential customers. “Why would +you want to pay serious money,” we have asked, “for +software that infringes our license and will bog you down in complex +legal problems, when you can have the real thing for free?” +Customers have never failed to see the pertinence of the question. +The stealing of free software is one place where, indeed, crime +doesn't pay.</p> + +<p>But perhaps we have succeeded too well. If I had used the courts to +enforce the GPL years ago, Microsoft's whispering would now be falling +on deaf ears. Just this month I have been working on a couple of +moderately sticky situations. “Look,” I say, “at +how many people all over the world are pressuring me to enforce the +GPL in court, just to prove I can. I really need to make an example +of someone. Would you like to volunteer?”</p> + +<p>Someday someone will. But that someone's customers are going to go +elsewhere, talented technologists who don't want their own reputations +associated with such an enterprise will quit, and bad publicity will +smother them. And that's all before we even walk into court. The first +person who tries it will certainly wish he hadn't. Our way of doing law +has been as unusual as our way of doing software, but that's just the +point. Free software matters because it turns out that the different way +is the right way after all.</p> + +<p><cite> +Eben Moglen is professor of law and legal history at Columbia University +Law School. He serves without fee as General Counsel of the Free Software +Foundation. +</cite></p> +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to <a +href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. There are also <a +href="/contact/">other ways to contact</a> the FSF. Broken links and other +corrections or suggestions can be sent to <a +href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations README</a> for +information on coordinating and submitting translations of this article.</p> +</div> + +<p>Copyright © 2001 Eben Moglen</p> + +<p>Verbatim copying and distribution of this entire article is permitted in +any medium, provided this notice is preserved.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2014/04/12 12:40:00 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |