GPL gains clout in German legal case

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GPL is not an EULA

There is little debate that the GPL is a license. However, the GPL is significantly different than a typical EULA from a proprietary vendor because of the scope of the GPL.

The GPL is restricted to reproduction and distribution issues. These issues are firmly within the scope of Copyright law. The end user is specifically prohibited by Copyright law from reproducing or distributing the software-- unless (1) explicit permission from the copyright holder is obtained or (2) the copying is approved under Copyright (such as fair use). The GPL provides that explicit permission on an otherwise prohibited action, and hence its enforceability is relatively uncontroversial.

Proprietary software EULAs, however, typically make one very controversial assumption: That the end user requires a license to USE lawfully purchased software. Copyright does not answer this question, because the right to use is distinct from the rights to reproduce or distribute.

Traditionally, the end user has always had the freedom to use any lawfully purchased copyrighted materials. For example, when you buy a book, you automatically have the right to read it. When you buy a DVD, you have the right to view the movie encoded upon it. When you buy a music CD, you have the right to listen to the music placed in your new CD. You do not need explicit permission to use your lawfully obtained materials, hence you do not need any "license" to give you permission to use/read/view/listen to these materials. You only need a license to do something which you are otherwise prohibited in doing without the license.

So the big debate that has not been fully answered in the court system is: Does the end user require explicit permission to use lawfully purchased software? If yes, then the user must assent to any license terms found in the onerous EULA because the user is prohibited from using the software otherwise. If no, then the user is free to ignore the license because no permission is needed in the first place. The user would still have to follow any restrictions and terms on the EULA regarding prohibited actions, such as reproducing and distribution restrictions.

In any case, the debate about the right to use software is independent of reproduction and distribution. Thus, a ruling that favors the enforceability of the GPL does not automatically favor the enforceability of EULAs in general.

Cheers!

Posted by: Root User   Posted on: 04/23/04 You are currently: a Guest | Members login | Terms of Use

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