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This question occurred to me as a result of Stephen Kitt's comment below my recent post, How to properly display the Copyright information in the User Interface or product documentation?

His comment:

“By using gifscroll”... That paragraph goes against the GPL, specifically, section 9 of GPL v3

refers to part of the gpl-related comment block in my code reading:

*      By using gifscroll, you warrant that you have read, understood
* and agreed to these terms and conditions, and that you possess the legal
* right and ability to enter into this agreement and to use gifscroll
* in accordance with it.

And after checking out section 9,

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

I'd agree with Stephen's comment. But the gist of that section sounds (to me, at least) like some Alice-in-Wonderland logic...

It's a license that grants you some rights (in this case "to receive or run a copy of the program") even if you don't accept the license. But if you don't accept the license in the first place, you wouldn't be appealing to the rights and permissions it does or doesn't grant you. You certainly can't be saying, in the same breath, that both (a)I don't accept this license, and (b)this license grants me permission to...

So what the heck is the purpose of this "even if you don't accept" clause in section 9? If you don't accept the license, then you don't care what it says, period. They're nevertheless presumably trying to accomplish something or other with that section 9. But what, exactly? And then I'd think (or hope) they could accomplish their intended purpose in a more sensible-sounding way.

MadHatter
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John Forkosh
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  • "You are not required to accept this License in order to receive or run a copy of the Program." If they didn't say this, some people might think they are not allowed to run the program. For example, if I want to install a program to use at work, I may need to prove to the IT department that it is properly licensed. It's nice to be able to point to that one sentence that shows that it is allowed to install and use it. – Brandin Sep 24 '18 at 05:40

2 Answers2

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Quoting the GPL FAQ:

You are not required to agree to anything to merely use software which is licensed under the GPL. You only have obligations if you modify or distribute the software.

Assuming you obtained a piece of GPL-licensed software appropriately (which means that whoever conveyed it to you accepted the license), you don’t need to accept the license merely to use the software. The onus is on distributors because they need additional rights to be allowed to redistribute the software (rights which are provided by the GPL). Copyright law doesn’t deny users the right to use copyrighted works; it restricts their rights to redistribute them, modify them, perform them etc.

The rights “to receive or run a copy of the program” are obtained as a result of the distributor’s acceptance of the license, that’s all that’s needed. The recipient doesn’t need to accept any license.

This is similar to, e.g., going shopping: the vast majority of goods you can buy (or be given, etc.) don’t require anything additional for you to be allowed to use them.

The first paragraph of the answer I’m quoting from is very lenient for authors and users:

Some software packaging systems have a place which requires you to click through or otherwise indicate assent to the terms of the GPL. This is neither required nor forbidden. With or without a click through, the GPL's rules remain the same.

So effectively your clause isn’t forbidden by the GPL, because it’s ineffective for users: users’ obligations aren’t changed by either accepting the license or not. Accepting the license merely to use the software entails no obligations for users; refusing the license merely to use the software doesn’t deny anything to users.

The GPL’s preamble gives additional context:

The licenses for most software and other practical works are designed to take away your freedom to share and change the works.

“share and change”, not “use”.

And you must show them these terms so they know their rights.

“show them”, not “require them to accept them”. The users of GPL software have the same basic rights as any software user, i.e. the right to use the software; but they also have additional rights, provided by the GPL, and it’s useful that they are made aware of them — but they don’t have to take advantage of those additional rights, and as a result they don’t have to accept the GPL.

Stephen Kitt
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  • Okay, thanks Stephen, I get the point, and that makes some sense. But half-elbowed sense, at best, as follows. If all you want to do is "receive a copy and run the program", then gplv3 already permits that. So why on earth wouldn't you accept it??? It's like you saying, "I want to receive and run this program". And then gplv3 says back to you, "Terrific, you are indeed licensed to do everything you want to do." But then you turn around and say back, "Oh yeah??? Well I don't accept that!!!" So how/why would such a scenario occur? I get your point (thanks, again) but it still isn't making sense. – John Forkosh Sep 23 '18 at 09:12
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    If all you want to do is “receive a copy and run the program”, copyright law already permits that — it requires that the distributor be allowed to distribute the program, it doesn’t require anything of the recipient (although as I understand it, it does try to make the recipient culpable if the distributor isn’t allowed to distribute the program). So as a recipient you don’t need the GPL to be allowed to receive and run the program. – Stephen Kitt Sep 23 '18 at 09:16
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    The scenario goes along the lines of distributors saying “here, have a copy of this program, and use it however you want”, users saying “wow, thanks”, and distributors going on to say “oh BTW this program is licensed under the GPL, you don’t need to care about that but if you’re interested, it grants you all these additional rights if you accept the corresponding obligations”. The latter is what users can refuse (because they don’t agree to the additional obligations); it still doesn’t mean they can no longer use the program. – Stephen Kitt Sep 23 '18 at 09:17
  • Okay, then that's what the gpl should say in complete detail, not some broad-brush "you don't have to accept". Laws (and contracts) can be interpreted broadly and/or narrowly (google "broad narrow legal interpretation" for lots of hits). For a contract/license to say "you don't have to accept me", that just opens a whole can of potential worms for a broader-than-intended interpretation, should some related matter ever come under dispute. (I'm not a lawyer, but my father,brother,ex, and lots of friends all are.) So I'm pretty sure this "you don't have to accept" is bad, bad contract language. – John Forkosh Sep 23 '18 at 09:28
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    @JohnForkosh: Well, it's worth noting that the GPL was never designed to be a contract in the first place (even if a judge recently ruled that it can be considered one). It's a unilateral (but conditional) license. In particular, nobody is obligated to accept a license just because it is offered; the GPL section you quote merely affirms that. – Ilmari Karonen Sep 23 '18 at 13:13
  • The question of whether the GPL (and other free licences) are licences or contracts is interesting, and the answer is jurisdiction-dependent. If you're curious I recommend LWN's coverage of a FOSDEM 2018 talk on the issue by some lawyers (full disclosure: I wrote the article). – MadHatter Sep 23 '18 at 15:46
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    @JohnForkosh "... then that's what the gpl should say in complete detail, not some broad-brush ..." - When you receive the program, by default you already have the right to run it. For the purpose of running the program, the GPL is simply immaterial. You can comply with the GPL's terms to gain additional (distribution) rights, but for running the program you can ignore it. This is the meaning of "You are not required to accept this License in order to receive or run a copy of the Program". Seems pretty clear to me. – marcelm Sep 23 '18 at 15:59
  • @IlmariKaronen and (@)MadHatter: Agreed, the gpl is a license. Indeed, it typically >>cannot<< be a contract, and I don't offhand get how any judge ruled otherwise. A contract requires "consideration", meaning you give me something in return for what I give you, whereas the gpl doesn't require that you give me anything (maybe a free beer:). And I never said it's a contract: I only said contract/license in that context that broad/narrow legal interpretations apply to both. – John Forkosh Sep 24 '18 at 03:56
  • @marcelm I agree with your remarks, and it "seems pretty clear" to me, too. But, like I said, it opens a potential can of worms for some legal argument interpreting "not accept" more broadly than intended -- even more broadly than explicitly stated. Somebody could, e.g., modify one line of my program, then remove my name and claim sole authorship, saying "I didn't accept the license". You'll probably say that argument wouldn't prevail, but you ain't the judge, and stranger things have happened. And the gpl could easily be worded to require acceptance while still allowing running, etc. – John Forkosh Sep 24 '18 at 04:03
  • @marcelm A possible "don't accept" loophole might be: suppose somebody does what I said above -- modifies one line of my program, then removes my name and claims sole authorship. Or does any nasty gpl-violating thing. But his argument goes as follows: At first, I simply received a copy of the program and ran it. And, as per the gpl, I didn't accept the gpl. Only much, much later did I decide to modify the program and claim sole authorship. And at that time, my non-acceptance was durable (a legal term), whereby I could do whatever I wanted. That argument's still "iffy", but just might prevail. – John Forkosh Sep 24 '18 at 04:21
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    @JohnForkosh: The part you seem to be missing that if they distributed your code without accepting (or complying with) the GPL, then they'd be distributing your code without a license, and thus infringing your copyright. Which is really the same situation as if you'd given them just a copy with no license at all (i.e. they could legitimately use their copy, since it'd be their lawfully acquired property, and even resell their single copy to someone else, but making additional copies and distributing them would be a violation of copyright law). – Ilmari Karonen Sep 24 '18 at 08:34
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    ... Choosing not to accept the GPL does not give you a license to "do whatever you wanted"; rather, it takes away your license to do the additional things the GPL permits (i.e. redistribution, with or without modification) while leaving only the things the law allows you to do with your legitimately owned copy by default (i.e. possession, use, resale without copying, plus various other statutory and/or customary forms of "fair use" depending on the jurisdistion). – Ilmari Karonen Sep 24 '18 at 08:40
  • @IlmariKaronen You may well be right, but you may possibly be wrong. If the matter comes under dispute, lawyers will research prior case law, precedents, etc, with questionable-but-arguable relevance to the fact pattern of their current case. What they might find and how they might spin an argument is beyond my ken, and I'd guess beyond yours. Neither of us knows for sure. But a license (or contract, etc) that contains clauses conferring rights even if you don't accept it just sounds spooky and suspicious to me. It ought to be re-worded. I'd like to see comments from an actual contract lawyer. – John Forkosh Sep 24 '18 at 11:47
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    @JohnForkosh "But a license (or contract, etc) that contains clauses conferring rights even if you don't accept it ..." - You continue to misunderstand. The GPL does not confer rights if you don't accept it. The right to run the program is a right you already have. It is not granted by the GPL, and hence you don't need to comply with the GPL to run the program. – marcelm Sep 25 '18 at 16:17
  • @marcelm That's excellent. Then the first sentence of section 9 "You are not required to accept this License in order to receive or run a copy of the Program" should be removed as unnecessary. Otherwise, it could be broadly construed to permit violation of gpl restrictions as follows: Since I already have these rights, the sentence "You are not required to accept this License..." must be granting me some other rights, not the ones I already have. Therefore, I don't accept the license, and can now do copyright-violating things that non-acceptance of the license grants me permission to do. – John Forkosh Sep 27 '18 at 13:36
  • @John have you read Copyleft and the GNU General Public License: A Comprehensive Tutorial and Guide? It should answer all your questions regarding these points (and was written from a legal perspective). – Stephen Kitt Sep 27 '18 at 13:48
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You don't have to accept any license to accept and use a copy of any copyrighted software (at least in the US). By the First Sale doctrine, you can do pretty much what you want with your legal copy. You can't copy it (except as necessary to run it) or modify it or anything else specifically forbidden. As far as that goes, the GPL is merely restating what's already true.

The Alice-in-Wonderland logic does apply to the language on torrent distribution. You can't get a copy through a torrent legally without a license (ask anybody the RIAA has sued for ridiculous amounts of money recently). The license is the only thing that allows that, and it specifies it doesn't have to be accepted to do that.

David Thornley
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  • When you obtain something using BitTorrent, you are also (typically) redistributing, so yes, you need a license for that. Specifically it's the redistribution that gets people sued. – Brandin Sep 29 '18 at 04:43