German software licensing law

Seth Johnson seth.johnson at
Tue Sep 27 14:45:31 UTC 2005

Ciaran O'Riordan wrote:
> Seth Johnson <seth.johnson at> writes:
> > Some licenses are contracts
> I think there's a name for licenses that are contracts: "contracts"
> no?

Sure.  It's not a question of licenses = passive and contracts =
active.  Some licenses are automatic, and some licenses are
agreements.  An "automatically applying" license is not exactly
what you ought to call "passive."  The GPL is an "automatically
applying" license.  That is, it "just applies" just like
copyright "just applies."

> > It's not as if the GPL found a magic category of the law
> Obviously.

The point is in the remaining portion of that sentence.

> > the GPL does bind people
> That doesn't make sense.  The GPL (like all licenses) is passive.  At what
> point are the conditions of the GPL interesting?  Only when the person wants
> to do something prohibited by law.

The reason the GPL applies without consent is because copyright
"just applies."

There are laws that "just apply."  You don't consent to them. 
The GPL hangs its hat on that sort of law, specifically the
copyright statutes.

The GPL asserts authorial rights, most essentially the right to
control derivative works.  That's the core trick of the GPL. 
It's a notice by the author of what you can do, because the
author can do that.

> The person thinks "oh, I want to give a copy of this software to a friend".
> Copyright prohibits this act, so the person checks their license and sees
> "you can distribute if you make the source available".
> If the person distributes without making the source available, they haven't
> followed the license, and they've plainly violated copyright law.  They
> don't violate the license, because the license doesn't bind.  They violate
> copyright law.
> This is explained by Eben Moglen:
> In a follow-up mail, Seth Johnson continues:
> > To be more particular, the GPL doesn't actually grant you an
> > exemption; it stipulates what kinds of derivative works you can
> > produce from the work in question.  It asserts a right in a
> > certain way; it doesn't, in its formal legal structure, exempt
> > you from the right.
> All this sounds like juggling words around - and I didn't even say that the
> GPL "exempt[s] you from [a] right".

{ 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...".

> > What you are describing -- "you are exempt
> > if you also pass on freedoms" -- would require a contract.
> I don't think I can see your point, or what you're trying to explain.

The GPL doesn't require consent because copyright "just applies."

The trade in considerations you're describing (I give you
exemptions if you pass on freedoms) would require a contract.


> --
> CiarĂ¡n O'Riordan, ___________________/        Join the Fellowship of FSFE to
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