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This looks to be a major change in the legal strategy behind GPL. In the past the focus has been on copyright claims by copyright holders, but as recent cases has shown in Germany and France, those has faced some rather strange setbacks. Germany don't seem to want to recognize copyright holders that only contributed a part of a larger work, which is basically all copyright holders for larger FOSS projects. In France they seems to define GPL as being under contract law and not under copyright law.

In this new case, the SFC is arguing a case in the context of third-party beneficiary which is under contract law and not copyright law. It seems like a bit of an long-shot, but if won it could mean a major change in interpreting GPL as a contract rather than a copyright license. I would guess that it also would change their strategy in other countries if won.



It seems strange to me that they'd adopt this strategy in the U.S. because of past failures in other countries. Gplv2 makes pretty clear it's a copyright license, so I see no reason it would be interpreted under contract law in the U.S., and as a layperson it seems unlikely that SFC would have standing in this case. Has a third party beneficiary ever been held to have standing in a copyright case?


It is strange, but I have seen in novel court cases where cases in other countries are used as an example. It is possible that they want the court to either confirm that GPL should be treated as a copyright license and not a contract, or that GPL can be seen as a contract in which users has a third-party beneficiary role. When they have that ruling they can use it as an example in countries where a gpl case has yet to be tested. It is also possible that they simply are testing something new when other approaches have failed.

According to the press kit, the case is claimed to be unique.


> I have seen in novel court cases where cases in other countries are used as an example

Do you mean novel court cases in the U.S. referencing cases from other countries? My impression was the U.S. was loath to base legal decisions on those from other countries (with the exception of British common law from before U.S. independence). Contrast this to Europe where the EU has adopted common European courts. It would be less surprising if you were talking about European courts cross-referencing each other.

I just don't know why they'd choose this strategy, except as a hail mary to create a new standing doctrine for software license. Has suing on behalf of the copyright holders proven insufficient in the U.S.?


> It is strange, but I have seen in novel court cases where cases in other countries are used as an example.

AIUI, it's relatively common in common law jurisdictions as a form of persuasive precedent[1] (I'm most familiar with England and Wales, where it has been noted "[c]ases decided in other jurisdictions can, if properly used, be a valuable source of law in this jurisdiction"). Though non-binding, the jurisdictions are based on (broadly) the same legal principles, so in areas where common law (as opposed to statue) predominates, a ruling in a comparable jurisdiction may suggest that similar findings would be true in the current jurisdiction, even if it hasn't formally been decided by a higher court.

As such, it can be illustrative to examine the reasoning of a rational, out of jurisdiction court and see how it would map to the current jurisdiction. If the necessary legal principles are applicable in the current jurisdiction, it would suggest a similar decision would be reached, but if something specific to this jurisdiction interrupts the chain of reasoning, it suggests local courts must come to a different decision, and may indicate how the ruling must be modified. As another example, if the reasonableness of a person's actions must be examined, a competent, rational court supporting similar actions in an adjacent jurisdiction may add strength to an argument that the person's actions were reasonable.

There is a brief discussion on the use of foreign caselaw by the House of Lords (predecessor to the Supreme Court) at [3].

[1] https://en.wikipedia.org/wiki/Precedent#Persuasive_effect_of...

[2] https://web.archive.org/web/20110204002153/http://www.hmcour...

[3] https://web.archive.org/web/20191025182334/https://www.loc.g...


Not a lawyer. A copyright license is a written agreement not dissimilar from a contract.

However, validating the contract usually doesn't come up, because the violator needs the agreement to be valid to avoid copyright infringement.

> Because the GPL does not require any promises in return from licensees, it does not need contract enforcement in order to work. A GPL licensor doesn't say in the event of trouble "But, judge, the licensee promised me he wouldn't do what he's doing now." The licensor plaintiff says 'Judge, the defendant is redistributing my copyrighted work without permission.' The defendant can then either agree that he has no permission, in which case he loses, or assert that his permission is the GPL, in which case he must show that he is obeying its terms. A defendant cannot simultaneously assert that the GPL is valid permission for his distribution and also assert that it is not a valid copyright license, which is why defendants do not 'challenge' the GPL.

https://lwn.net/Articles/61292/

However, I believe only the copyright holder can sue for copyright infringement, so this case is instead taking that oft-skipped step of validating the contract so it can further claim SFC is a party of the contract. Infringement cases also have specific rules about damages, which can make it hard to actually get the infringer to do anything when you give the software away for free. IMO the "specific performance" seems likely to be granted if they win the case on contract grounds.

There was another recent case where they seemed to rule the GPL could be enforced as a contract, but I'm not familiar: https://www.theregister.com/2017/05/13/gnu_gpl_enforceable_c...


> A copyright license is a written agreement not dissimilar from a contract.

Neither a copyright license nor a contract needs to be a written agreement, except in special cases, and a copyright license either is a contract or is a gratuitous license.

> because the violator needs the agreement to be valid to avoid copyright infringement.

Not in US law if the use would be within an exception like free use, even if it is purportedly prohibited by the license (which, if the license were a valid contract, would prohibit the conduct even if it was free use without the contract being in place.)


A copyright license is a contract, no? Copyright law can't govern enforcement of license, it only determines whether the author has the right to apply license, for being an author, but the actual meat of the license is subject to contract law.


SFC also represent a coalition of Linux kernel developers, so they could have (also?) gone the traditional route.


Do you have a link to the German case?




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