Is the GPL license a contract? The wrong question

Are the GPL and other free software and open source licenses contracts? Although often-asked, this is the wrong question and easily answered. Pieces of paper and digital files are not, themselves, contracts. Thus, the answer is that none of these license forms standing alone are contracts. But, of course, there is more to it than that.

The "free software" movement, and the "open source" analogue, is unique in history. They are the first values-driven movements organized around legal documents in the sense that the documents (licenses) that they use to define participation in the movement are intended directly to have legal effect and often to control behavior of other parties (licensees). They are also the first values-based movement for which one can be a member for purposes of a particular product, but a non-member for other products. The focus on legal documents and products is unique. The latter is like being an objectivist for Tuesday and Thursday meetings, but a social liberal for the remainder of the week and having that bifurcation endorsed by the values-based movement itself.

Because of its unique focus (for a values-driven movement) on legal documents, the free and open source movement generates numerous interesting legal questions. At the threshold, is the seemingly simple question of whether the licenses are contracts, and especially whether the most influential license (the GNU General Public License) is a contract. Most people who deal with open source understandably approach the licenses as if they create contracts. Many in the open source and free software community likewise treat them as contracts. Yet, several leaders of the community take a different view. Eben Moglen, for example, argues that the GPL is not a contract, but an old-fashioned license - that is, a conditional permission not grounded in a contract, but in the fact that the "licensor" owns the copyright in what is being licensed. The story he tells proceeds by claiming that, without the conditional permission, the licensee has no right to use the software at all. In enforcing the license, then, he never needs to consider whether there was a contract. The circumstance is like when I allow you into my home for dinner. We do not need a contract for it to be clear that you have permission to stay for the evening, but not to stay for months and not to destroy the furnishings you see in my home.

But as academically pleasing as it is, all of this is simply beside the point because it focuses on the wrong question. Neither the GPL nor any other piece of paper constitutes a contract without more. A "contract" is the total legal obligations of the parties arising out of their agreement as enforced in law. Papers or digital records are neither agreements, nor obligations. Rather, to get at what Moglen and others are concerned about, we need to ask whether, as used in a transaction between two parties, the piece of paper or digital document created or became part of an agreement that the law treats as having created an enforceable obligation.

How the license is used in the context of a particular transaction controls whether it creates or becomes part of a contract. It truly is as simple as that. Furthermore, the fact that the person who drafted a form license intended that it not be used for a contract does not matter.

If you and I are about to make a sale of real estate and I point to a standard form for an oil and gas license sitting on the table near us, saying: "if we ever do an oil and gas lease, I would like to use that form," the form is not a contract between us. On the other hand, if we are doing a license of software and you point to a copy of the BSD license saying: "I will license this software to you for $X pursuant to the terms of that license," when I agree, the BSD license becomes part of the terms of our license.

Why do we care? Maybe we don't, but the law often does. Whether a form is used to create a contractual license or not affects what remedies are available for breach and to what extent the licensor can unilaterally withdraw its "permission." It also makes a difference potentially on what rights the licensee receives.

But are non-contractual licenses enforceable? Some say that it does not matter. If the license is effective (as a contract or otherwise), the licensee has the designated rights. If it is not effective, then the licensee has no rights at all. But would the same people say the same thing about a Microsoft or Adobe license? If not, then even in their minds the "no rights" mantra is as simplistic as is the question of whether the form is a contract. Free and open source licenses are governed by the same laws that govern Microsoft or Adobe licenses. Indeed, some of these are IBM or Sun Microsystems licenses. The effect of finding that the license is ineffective depends, once again, on the context and on whether the license is being used to deal with rights that would otherwise come from the parties' agreement or by operation of law. For example, a transferee of a free software package where the license fails would still have a claim to a fair use defense in appropriate cases.

The context and actual use of the form by the parties controls.

Thus, the next time you are asked whether the GPL or any other "license" creates a contract, you should ask: "how was the license form used by the parties?" Any other response is a wrong answer to what is often the wrong question.