Clarification of gpl v3 section 9

John Forkosh 09/23/2018. 2 answers, 244 views

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.

2 Answers

Stephen Kitt 09/23/2018.

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.

David Thornley 09/28/2018.

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. - Download Hi-Res Songs

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