10

tl;dr version Unlike most software licenses, the GPL (at least version 3.0) does not contain a choice of law provision. Why is this, and what provisions are in place to adjudicate disputes in the meaning, applicability, or enforceability of the GPL or sections thereof in the absence of an authoritative tribunal or legal system?

The vast majority of software licenses provide a choice of law clause specifying that their terms shall be interpreted according to the laws of and enforced by the courts of a specific legal jurisdiction, typically the jurisdiction in which the software publisher is headquartered.

For example, the license for CentreSuite (a product I picked at random, no affiliation) provides that (emphasis in original):

Governing Law and Jurisdiction. You and Provider agree that all matters arising from or relating to the Provider’s provision of the Application(s), Related Services, Information, and your access to and use thereof, shall be governed by the laws of the State of Colorado and the United States, without regard to conflict of laws principles. You and Provider agree to submit to the exclusive personal jurisdiction and venue of the appropriate state or federal court located in Denver, Colorado, USA with respect to all such matters.

These clauses are quite common. Apple software generally includes a choice of law provision of California law. Microsoft prefers that their licenses be interpreted under the laws of Washington State, where they are headquartered.

My understanding is that these clauses are inserted in order to make enforcement of the license by the publisher easier and more certain. The publisher does not need to spend a large amount of time or effort figuring out how their license would be interpreted under the laws of Uzbekistan, Rwanda, or Argentina, as the user has already agreed that the license can only be interpreted and enforced under the courts of Colorado and the US federal government.

I noticed that nowhere in the text of the GPL 3.0 is a jurisdiction mentioned.

Is there a reason why there is no jurisdiction mentioned in the GPL? On the one hand, it makes sense to not tie the GPL too tightly to the whims of any specific political entity, but it also makes me wonder whether there could be some jurisdiction out there whose laws or courts are likely to interpret GPL clauses in ways that are widely divergent from the ways in which they are generally interpreted, or even perhaps find entire sections of the GPL unenforceable.

For example, suppose I am in possession of the object code of a GPL 3.0-licensed work and I approach the distributor pursuant to Section 6 to demand a copy of the source code. The distributor responds that they are in Ruritania and that Section 6 is unenforceable in Ruritania under the No Mandatory Software Disclosures (Ruritania) Act 2022. What is supposed to happen? Does Richard Stallman lead an army of Space Marines to topple the Ruritanian government and install a puppet regime loyal to him? Does the FOSS community get together to boycott Ruritania and/or those who hide behind Ruritanian law to do something that the FOSS community does not agree with? Does everyone just sort of shrug and go back to whatever they were doing before?

Alternately, if the Supreme Court of Ruritania rules that the word "work" in Section 0 of the GPL does not mean what it is generally supposed to mean in the FOSS community, but is actually restricted to "content on a physical medium registered with and physically present at a Ruritanian Depository Library or Accredited University of Software Sciences", will the FOSS community respect that the act of Ruritanians sharing GPL software online outside of library and university contexts does not fall under GPL rules since copies of such software are not legally considered "works" in Ruritania?

Discussion:

I do expect that most jurisdictions are going to interpret the GPL in roughly the same way, but lawyers do not generally like the terms most and roughly! One jurisdiction might adopt an originalist approach, interpreting the GPL according to how they feel Richard Stallman would have understood it when he first wrote it. Another might interpret the GPL as a living document whose precise meaning changes according to the consensus of the FOSS community. Other jurisdictions might impose their own rules in interpreting words or phrases of the GPL to comply with their own public policy, rules of interpretation, or political goals.

I did notice Section 12, No Surrender of Others' Freedom, but that refers to cases in which an author or distributor is legally constrained from complying with the GPL. It doesn't seem to apply when an author or distributor has been granted license (pun intended) under their local law to do things that the GPL purports to prohibit, fail to do things that the GPL requires, or interpret the GPL on terms other than those of the consensus of the FOSS community and/or the ex cathedra pronouncements of Stallman and the FSF.

Another way to ask this question is whether the terms of the GPL are supposed to be objectively interpreted according to an existing set of principles of jurisprudence, rules and theories of interpretation and construction, etc. (e.g. by the standards of a specific jurisdiction or system of law), or whether the FSF and/or the FOSS community in general is open to different, regional, or idiosyncratic interpretations of the GPL.

For a practical example of interpretation, Section 8 of the GPL 3.0 specifies that a license may be restored "permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation". Does the FSF and/or the FOSS community assert the right to define what "reasonable means" involves and what means are and are not reasonable, or do they delegate the determination of such to courts and tribunals around the world? Suppose someone has violated the GPL for some software I wrote and I am wondering if notification by singing telegram falls under "reasonable means". Is this a question I should investigate through the open source community, e.g. by calling the FSF or posting on FOSS forums to gauge current community consensus on reasonableness, or is this a pure legal question for my lawyer?

11
  • 2
    Not so fast! You wrote "...most jurisdictions are going to interpret the GPL in roughly the same way...". Depending on jurisdiction GPL means different things. While in France a judge said that GPL license to be inapplicable in French copyright court, . An interesting case develops in USA where GPL is a license and at the same time a contract. Dec 21, 2022 at 16:00
  • @Martin_in_AUT thanks! That actually strengthens my question a lot! It's often claimed (e.g. here) that the GPL is not a contract at all, but a pure license. If French law considers the GPL to be a contract and not a license, then that potentially means that the GPL is something entirely different in France and may not operate under the same rules. Dec 21, 2022 at 16:06
  • 5
    Assuming there was a choice of law and definition of the competent court, and just as an example assume it would be California and a district court in Sacramento, then everybody with a GPL case would need to find an expensive lawyer admitted to the bar there and everybody would need to do a lot of traveling, even if the dispute was in Europe or Asia or any other region of the world. That would be completely impracticable. Dec 21, 2022 at 16:06
  • @Martin_in_AUT yes, that's pretty much what I was trying to say. My question is if the FOSS community is ok with the courts of Ruritania, Wakanda, Arendelle, the Haxors' Republic of Pirate Freedonia, and the Free Socialist Revolutionary Consodality of Inter-Trans Upper-Lower Egypt all interpreting the obligations and rights of the GPL differently, or whether the FSF and/or the FOSS community really does intend e.g. the whole thing to be based on California law or something. Dec 21, 2022 at 16:11
  • Good questions "if the FOSS community is OK with..." and what "the FSF and/or the FOSS community really does intend..." , but this is completely opinion-based and nobody here can provide you with an answer to that. We have to deal with the current world as we have it, with all its imperfection. Dec 21, 2022 at 16:18

4 Answers 4

15

A direct answer as given by FSF:

Some have asked us to address the difficulties of internationalization by including, or permitting the inclusion of, a choice of law provision. We maintain that this is the wrong approach. Free software licenses should not contain choice of law clauses, for both legal and pragmatic reasons. Choice of law clauses are creatures of contract, but the substantive rights granted by the GPL are defined under applicable local copyright law. Contractual free software licenses can operate only to diminish these rights. Choice of law clauses also raise complex questions of interpretation when works of software are created by combination and extension. There is also the real danger that a choice of law clause will specify a jurisdiction that is hostile to free software principles.

Our revised version of section 7 makes explicit our view that the inclusion of a choice of law clause by a licensee is the imposition of an additional requirement in violation of the GPL. Moreover, if a program author or copyright holder purports to supplement the GPL with a choice of law clause, section 7 now permits any licensee to remove that clause.

20

It is unusual for general-purpose open source licenses to have a choice of law clause. One example I am aware of is the EUPL 1.2:

15. Applicable Law

Without prejudice to specific agreement between parties,

  • this Licence shall be governed by the law of the European Union Member State where the Licensor has his seat, resides or has his registered office,
  • this licence shall be governed by Belgian law if the Licensor has no seat, residence or registered office inside a European Union Member State.

But while choice of law clauses can simplify legal remedies for some, they can also make such remedies unattainable for others.

For example, consider that the GPL were to specify that all claims regarding the GPL shall be brought before a court in Boston, MA, USA. This would be quite problematic if neither the licensor nor licensee has any connection to the US. It would make it effectively financially impossible to settle a GPL-related dispute between, say, two developers from Thailand.

This would run counter to the GPL's goal to ensure more software freedom for people.

The EUPL is not such a dramatic case because it's not really a general-purpose license – it's primarily used for software that has been developed on behalf of the European Union, and software covered by the EUPL can be re-licensed under certain other copyleft licenses that do not carry a choice of law clause.

Note that open source licensing is largely based on a more egalitarian worldview where there shouldn't be strong power differentials between licensors and licensees. In contrast, a choice of law clause for proprietary EULAs clearly serves to uphold and enhance a power differential: discouraging users from starting litigation, and keeping legal costs low for the author.

You raise a good point that different jurisdictions can interpret licenses differently. But in this context, it is important to note that open source licenses are generally founded on copyright law, not on contract law. Whereas copyright law is harmonized through international treaties, even basic aspects of contracts differ wildly between jurisdictions (e.g. when a contract is entered, or whether consideration is required).

Modern open source licenses also take great care to define terms in a jurisdiction-independent way. Whereas the GPL-2.0 borrowed the term “distribute” from the US copyright law context, GPL-3.0 instead introduces the novel concepts “propagate” and “convey” and defines them in a manner that does not need to reference any particular jurisdiction:

To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.

Of course, this reference to “applicable copyright law” does mean that the GPL-3.0 might have slightly different scope in different jurisdictions, but there's a bit of a tradeoff here between creating a license that works reasonably well everywhere, and a license that works exactly as designed but only in some jurisdictions.

For your Ruritania example, this means that parts of the GPL would be irrelevant in the context of Ruritanian law. There's nothing the GPL can do to change this: licenses or contracts can't override the laws in some jurisdiction. As a practical example of this, consider that North Korea is not party to many international copyright treaties, but is nevertheless a well-known user of GPL-covered software such as with their Red Star OS Linux distribution. To put it mildly, I doubt that users of that OS have the freedom to inspect, modify, and share the OS as permitted by the GPL.

1
  • 3
    I am not a lawyer but my take on US law is that at least one of the parties must have some presence in courts jurisdiction. If both parties are in Thailand it is unlikely that a Boston court would hear the case.
    – doneal24
    Dec 21, 2022 at 15:46
6

Especially the points about a uniform license worded in a way that it will (hopefully) be ruled everywhere similarly after are a strong argument - amon's answer explains this well. But there is one other point: often such clauses about choice of jurisdiction and choice of court will be void anyway:

While it may be common in a b2b environment that such clauses are written into contracts, they may not be applicable when dealing with non-business customers, i. e. end users. At least in European law every end user has always the choice to go to court in their home country or in their country of residence, irrespective of what any eula or license tries to dictate. The same argument holds true for the choice of applicable law. I shall be surprised when similar laws don't exist in more countries.

1

You and Provider agree that ... shall be governed by the laws of the State of Colorado and the United States ...

Such a sentence makes no sense at all:

If a company sells software in Germany, German laws apply; and if it sells software in China, Chinese laws apply.

If somebody in some banana republic copies software, modifies it or uses foreign source code in his own project, the laws of that country apply.

No license can change this.

According German laws (as an example) the only thing a license can do is allowing somebody to do something that requires the permission of the author of the software.

A license cannot forbid anything and it cannot say which laws apply and which laws do not apply.

(The lawsuits of Mr. Welte showed this...)

Another extreme example:

If the laws of some country do not forbid using foreign code in own programs without the permission of the author and/or copyright holder, you can ignore what the "license" says and legally use foreign code in your software in that country.

No matter what the license (GPL, EULA ...) says.

3
  • It's not so simple. What you write (and what I also wrote in my answer) is that the law of the country of residence applies for end users. Businesses can write a jurisdiction and applicable law into their contracts under which they settle disputes - and then they are bound to it. That's part of international trade treaties. Dec 23, 2022 at 10:25
  • @planetmaker There is one important point: In the case of the b2b contract, both companies agree with some (typically written) contract and therefore they must comply with the contract. Somebody who takes some GPL source code from a CD ROM and uses it in some project has never signed a contract. And there is an even worse situation: ... Dec 23, 2022 at 15:34
  • @planetmaker ... Imagine the contract says that US copyright has to be applied. The US company sends some intellectual property to Germany using some USB stick and an employee of the delivery service makes a copy. The type of intellectual property is not listed in German UrhG, which means that it is not protected in Germany. This means that German law does not forbid the delivery guy to make as many copies of the work as he likes and even to sell them! And the delivery guy never signed a contract either! Dec 23, 2022 at 15:37

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service and acknowledge you have read our privacy policy.

Not the answer you're looking for? Browse other questions tagged or ask your own question.