German software licensing law

Seth Johnson seth.johnson at
Tue Sep 27 13:44:53 UTC 2005

Well, it's not that copyright licenses don't bind people; it's
that the GPL only exercises rights that authors have been
accorded control over.  Authors under copyright policy have the
unilateral right to stipulate certain terms for their works.

The GPL doesn't require consent and is not a contract because
copyright doesn't require consent.

Some licenses are contracts, so they can be referred to as
"license agreements."  The GPL is not a license agreement, it's
just a notice.

It's not as if the GPL found a magic category of the law that
works without binding people.  Rather, the GPL does bind people
using the author's statutory right to control derivative works,
and it binds them without their consent.  It's just that the bind
is to conditions that assure the code remains free.

Binding without consent sounds bad, but it's not, any more than
copyright is.  It's just that the GPL chooses to use copyright to
invert itself.  Recognizing that copyright could be used to
impose freedom without requiring consent was a master stroke,
that effectively subverts the whole trend toward contractually
licensing things; i.e., authors setting whatever rules they feel
like as if they had those rights, through the use of contracts.

Authors don't call all the shots for their works, at all.  They
call about 6 shots (in the U.S. code), which have been
specifically accorded to them by statute.  Those rights can be
taken away by Congress, just as they have been granted by
Congress.  So the way other people try to create contractual
license approaches, expanding copyright illegitimately, is
subverted by the GPL's restricting itself to only the rights that
are given to authors by statute.

This is also why RMS is cautious about proposals to change
copyright law.  He needs to make sure that the magic power of the
GPL is not undermined by those proposals.


Ciaran O'Riordan wrote:
> Rui Miguel Seabra <rms at> writes:
> > it would be a shame if two people on one country couldn't make an
> > agreement in another language because of the law.
> >
> > The law is there to help the existence of justice, so it would be
> > terribly unfair if there had to be a portuguese GPL for me to legally
> > use most free software out there.
> There's confusion in this thread, and I think it started with the term
> "licensing agreements" being used in the initial question.
> IANAL, but I don't think "licensing agreements" exist in law.  Legal
> agreements exist, they're called contracts.  Licenses exist, they're called
> licenses and they are one-way grants of rights.
> Being clear about this matters because the GPL is a license (only).  It is
> not an agreement, and it's not a contract.
> At a guess, I'd say most countries allow licenses in any language, and I'd
> say some/many countries allow contracts only in an official language of the
> country.
> Contracts bind people - like private laws (they're limited by constitutions,
> details of contract law, and judges).  Allowing people to bind themselves
> without understanding what they're binding themselves too would probably be
> unjust.  (I stuck in "probably" because exploring that would be off topic.)
> Licenses don't bind people, so they're not as dangerous.  Licenses grant you
> exceptions to the laws that already bind you.  For example, the GPL grants
> you exceptions to copyright law (copyright law says "you can't copy", the
> GPL says "you are exempt from that - so you can copy - IF you also pass on
> these freedoms...".  (The "IF" isn't a binding, it's a condition on a
> bonus.)
> Can someone correct me if I'm wrong?
> --
> CiarĂ¡n O'Riordan, ___________________/        Join the Fellowship of FSFE to
> _/ support the campaigns against software
> ___________________________________/      patents and IPRED2
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