enforcing-gpl.html (13228B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="essays licensing copyleft" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>Enforcing the GNU GPL 7 - GNU Project - Free Software Foundation</title> 8 <!--#include virtual="/philosophy/po/enforcing-gpl.translist" --> 9 <!--#include virtual="/server/banner.html" --> 10 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 11 <!--GNUN: OUT-OF-DATE NOTICE--> 12 <!--#include virtual="/server/top-addendum.html" --> 13 <div class="article reduced-width"> 14 <h2>Enforcing the GNU GPL</h2> 15 16 <address class="byline">by <a href="http://moglen.law.columbia.edu/">Eben 17 Moglen</a> <a href="#moglen"><sup>[*]</sup></a></address> 18 19 <p><em>10 September 2001</em></p> 20 21 <p>Microsoft's anti-GPL offensive this summer has sparked renewed 22 speculation about whether the GPL is “enforceable.” This 23 particular example of “FUD” (fear, uncertainty and doubt) 24 is always a little amusing to me. I'm the only lawyer on earth who 25 can say this, I suppose, but it makes me wonder what everyone's 26 wondering about: Enforcing the <a href="/licenses/gpl.html">GPL</a> is 27 something that I do all the time.</p> 28 29 <p>Because <a href="/philosophy/free-sw.html">free software</a> is an 30 unorthodox concept in contemporary society, people tend to assume that 31 such an atypical goal must be pursued using unusually ingenious, and 32 therefore fragile, legal machinery. But the assumption is faulty. The 33 goal of the Free Software Foundation in designing and publishing the GPL, 34 <em>is</em> unfortunately unusual: we're reshaping how programs are made in 35 order to give everyone the right to understand, repair, improve, and 36 redistribute the best-quality software on earth. This is a transformative 37 enterprise; it shows how in the new, networked society traditional ways of 38 doing business can be displaced by completely different models of 39 production and distribution. But the GPL, the legal device that makes 40 everything else possible, is a very robust machine precisely because it is 41 made of the simplest working parts.</p> 42 43 <p>The essence of copyright law, like other systems of property rules, is the 44 power to exclude. The copyright holder is legally empowered to exclude 45 all others from copying, distributing, and making derivative works.</p> 46 47 <p>This right to exclude implies an equally large power to 48 license—that is, to grant permission to do what would otherwise 49 be forbidden. Licenses are not contracts: the work's user is obliged 50 to remain within the bounds of the license not because she voluntarily 51 promised, but because she doesn't have any right to act at all except 52 as the license permits.</p> 53 54 <p>But most proprietary software companies want more power than copyright 55 alone gives them. These companies say their software is 56 “licensed” to consumers, but the license contains 57 obligations that copyright law knows nothing about. Software you're 58 not allowed to understand, for example, often requires you to agree 59 not to decompile it. Copyright law doesn't prohibit decompilation, 60 the prohibition is just a contract term you agree to as a condition of 61 getting the software when you buy the product under shrink wrap in a 62 store, or accept a “clickwrap license” on line. Copyright 63 is just leverage for taking even more away from users.</p> 64 65 <p>The GPL, on the other hand, subtracts from copyright rather than adding to 66 it. The license doesn't have to be complicated, because we try to control 67 users as little as possible. Copyright grants publishers power to forbid 68 users to exercise rights to copy, modify, and distribute that we believe 69 all users should have; the GPL thus relaxes almost all the restrictions of 70 the copyright system. The only thing we absolutely require is that anyone 71 distributing GPL'd works or works made from GPL'd works distribute in turn 72 under GPL. That condition is a very minor restriction, from the copyright 73 point of view. Much more restrictive licenses are routinely held 74 enforceable: every license involved in every single copyright lawsuit is 75 more restrictive than the GPL.</p> 76 77 <p>Because there's nothing complex or controversial about the license's 78 substantive provisions, I have never even seen a serious argument that the 79 GPL exceeds a licensor's powers. But it is sometimes said that the GPL 80 can't be enforced because users haven't “accepted” it.</p> 81 82 <p>This claim is based on a misunderstanding. The license does not require 83 anyone to accept it in order to acquire, install, use, inspect, or even 84 experimentally modify GPL'd software. All of those activities are either 85 forbidden or controlled by proprietary software firms, so they require you 86 to accept a license, including contractual provisions outside the reach of 87 copyright, before you can use their works. The free software movement 88 thinks all those activities are rights, which all users ought to have; we 89 don't even <em>want</em> to cover those activities by license. Almost 90 everyone who uses GPL'd software from day to day needs no license, and 91 accepts none. The GPL only obliges you if you distribute software made 92 from GPL'd code, and only needs to be accepted when redistribution occurs. 93 And because no one can ever redistribute without a license, we can safely 94 presume that anyone redistributing GPL'd software intended to accept the 95 GPL. After all, the GPL requires each copy of covered software to include 96 the license text, so everyone is fully informed.</p> 97 98 <p>Despite the FUD, as a copyright license the GPL is absolutely solid. 99 That's why I've been able to enforce it dozens of times over nearly ten 100 years, without ever going to court.</p> 101 102 <p>Meanwhile, much murmuring has been going on in recent months to the 103 supposed effect that the absence of judicial enforcement, in US or other 104 courts, somehow demonstrates that there is something wrong with the GPL, 105 that its unusual policy goal is implemented in a technically indefensible 106 way, or that the Free Software Foundation, which authors the license, is 107 afraid of testing it in court. Precisely the reverse is true. We do not 108 find ourselves taking the GPL to court because no one has yet been willing 109 to risk contesting it with us there.</p> 110 111 <p>So what happens when the GPL is violated? With software for which the 112 Free Software Foundation holds the copyright (either because we wrote 113 the programs in the first place, or because free software authors have 114 assigned us the copyright, in order to take advantage of our expertise 115 in protecting their software's 116 freedom), <a href="/licenses/gpl-violation.html">the first step is a 117 report</a>, usually received by email 118 to <a href="mailto:license-violation@gnu.org"><license-violation@gnu.org></a>. 119 <a href="/licenses/gpl-violation.html">We ask the reporters of 120 violations to help us establish necessary facts</a>, and then we 121 conduct whatever further investigation is required.</p> 122 123 <p>We reach this stage dozens of times a year. A quiet initial contact is 124 usually sufficient to resolve the problem. Parties thought they were 125 complying with GPL, and are pleased to follow advice on the correction of 126 an error. Sometimes, however, we believe that confidence-building 127 measures will be required, because the scale of the violation or its 128 persistence in time makes mere voluntary compliance insufficient. In such 129 situations we work with organizations to establish GPL-compliance programs 130 within their enterprises, led by senior managers who report to us, and 131 directly to their enterprises' managing boards, regularly. In 132 particularly complex cases, we have sometimes insisted upon measures that 133 would make subsequent judicial enforcement simple and rapid in the event 134 of future violation.</p> 135 136 <p>In approximately a decade of enforcing the GPL, I have never insisted on 137 payment of damages to the Foundation for violation of the license, and I 138 have rarely required public admission of wrongdoing. Our position has 139 always been that compliance with the license, and security for future good 140 behavior, are the most important goals. We have done everything to make 141 it easy for violators to comply, and we have offered oblivion with respect 142 to past faults.</p> 143 144 <p>In the early years of the free software movement, this was probably the 145 only strategy available. Expensive and burdensome litigation might have 146 destroyed the FSF, or at least prevented it from doing what we knew was 147 necessary to make the free software movement the permanent force in 148 reshaping the software industry that it has now become. Over time, 149 however, we persisted in our approach to license enforcement not because 150 we had to, but because it worked. An entire industry grew up around free 151 software, all of whose participants understood the overwhelming importance 152 of the GPL—no one wanted to be seen as the villain who stole free 153 software, and no one wanted to be the customer, business partner, or even 154 employee of such a bad actor. Faced with a choice between compliance 155 without publicity or a campaign of bad publicity and a litigation battle 156 they could not win, violators chose not to play it the hard way.</p> 157 158 <p>We have even, once or twice, faced enterprises which, under US 159 copyright law, were engaged in deliberate, criminal copyright 160 infringement: taking the source code of GPL'd software, recompiling it 161 with an attempt to conceal its origin, and offering it for sale as a 162 proprietary product. I have assisted free software developers other 163 than the FSF to deal with such problems, which we have 164 resolved—since the criminal infringer would not voluntarily 165 desist and, in the cases I have in mind, legal technicalities 166 prevented actual criminal prosecution of the violators—by 167 talking to redistributors and potential customers. “Why would 168 you want to pay serious money,” we have asked, “for 169 software that infringes our license and will bog you down in complex 170 legal problems, when you can have the real thing for free?” 171 Customers have never failed to see the pertinence of the question. 172 The stealing of free software is one place where, indeed, crime 173 doesn't pay.</p> 174 175 <p>But perhaps we have succeeded too well. If I had used the courts to 176 enforce the GPL years ago, Microsoft's whispering would now be falling 177 on deaf ears. Just this month I have been working on a couple of 178 moderately sticky situations. “Look,” I say, “at 179 how many people all over the world are pressuring me to enforce the 180 GPL in court, just to prove I can. I really need to make an example 181 of someone. Would you like to volunteer?”</p> 182 183 <p>Someday someone will. But that someone's customers are going to go 184 elsewhere, talented technologists who don't want their own reputations 185 associated with such an enterprise will quit, and bad publicity will 186 smother them. And that's all before we even walk into court. The first 187 person who tries it will certainly wish he hadn't. Our way of doing law 188 has been as unusual as our way of doing software, but that's just the 189 point. Free software matters because it turns out that the different way 190 is the right way after all.</p> 191 192 <div class="infobox extra" role="complementary"> 193 <hr /> 194 <p id="moglen">[*] 195 Eben Moglen is professor of law and legal history at Columbia University 196 Law School. He serves without fee as General Counsel of the Free Software 197 Foundation. 198 </p> 199 </div> 200 </div> 201 202 </div><!-- for id="content", starts in the include above --> 203 <!--#include virtual="/server/footer.html" --> 204 <div id="footer" role="contentinfo"> 205 <div class="unprintable"> 206 207 <p>Please send general FSF & GNU inquiries to <a 208 href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. There are also <a 209 href="/contact/">other ways to contact</a> the FSF. Broken links and other 210 corrections or suggestions can be sent to <a 211 href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> 212 213 <p><!-- TRANSLATORS: Ignore the original text in this paragraph, 214 replace it with the translation of these two: 215 216 We work hard and do our best to provide accurate, good quality 217 translations. However, we are not exempt from imperfection. 218 Please send your comments and general suggestions in this regard 219 to <a href="mailto:web-translators@gnu.org"> 220 <web-translators@gnu.org></a>.</p> 221 222 <p>For information on coordinating and contributing translations of 223 our web pages, see <a 224 href="/server/standards/README.translations.html">Translations 225 README</a>. --> 226 Please see the <a 227 href="/server/standards/README.translations.html">Translations README</a> for 228 information on coordinating and contributing translations of this article.</p> 229 </div> 230 231 <p>Copyright © 2001 Eben Moglen</p> 232 233 <p>Verbatim copying and distribution of this entire article is permitted in 234 any medium, provided this notice is preserved.</p> 235 236 <!--#include virtual="/server/bottom-notes.html" --> 237 238 <p class="unprintable">Updated: 239 <!-- timestamp start --> 240 $Date: 2021/10/03 08:44:33 $ 241 <!-- timestamp end --> 242 </p> 243 </div> 244 </div><!-- for class="inner", starts in the banner include --> 245 </body> 246 </html>