Last night I attended the Patent Prom. Thanks to Mary Ann Ball for inviting me, even if she did spend the night constantly reminding me that any statement I made about the GPL was an admission of some kind.
The evening’s featured speakers were James Carville and Mary Matalin. I couldn’t hear her speech, and I couldn’t understand his. One thing he did manage to make intelligible, though, was the notion that if Hillary Clinton loses Pennsylvania, North Carolina or Indiana, she’s “busted”. I wonder if he’s said that to her.
At any rate, the night was a constant stream of patent, trademark and copyright lawyers, the kind of people who use the term “intellectual property” without irony or scare quotes. They approach a lot of the issues I care about from a different point of view than I do. I encountered some GPL misconceptions and ended the night in a bar with a friend trying to explain to her that the GPL is a copyright license and not a contract (yes, this is how I spend my Friday night).
She seemed to believe there is no such thing as a license in the absence of contract, that one cannot give anybody permission to do anything without creating reciprocal contractual obligations. I would ask anybody who believes that to think in terms of all those property concepts we learned back in 1L. Licenses have existed beside contract for hundreds of years.
One of the consequences of the GPL being a copyright license is that remedies for violation of the license are found in copyright law. Contract remedies simply do not apply. In particular, there is no theory of specific performance under copyright law, which means one cannot use copyright law to force anybody to publish or license any copyrighted work. Casting the GPL as a license rather than a contract is one of the ways we prevent forcing people to GPL code against their will.
What’s interesting is that the contract misconception is always presented to me by people whose primary fear is exactly that. They suffer cold sweats when they imagine being forced to GPL their code. I never understand why these people are proponents of the legal theory that makes their fears more likely. Why insist on trumpeting a contract theory that makes the GPL less hospitable to your clients?
And to add irony to injury, these people doing such harm to their own cause often accuse me of secretly wanting to force all their code into the GPL pool. If only they could see that I am on their side.