Enforcing the Gnu Gpl

Abstract:     
The rise in popularity of the GNU General Public License has led to confusion regarding how to enforce the license. The Free Software Foundation claims that the GPL is a non-contractual license. But this theory presents problems, because it does not account for the possibility of the licensor withdrawing the license to the detriment of the licensee. The second theory holds that the GPL is a contract. This theory is plausible, because traditional software licenses are generally interpreted as contracts. But such licenses have cash consideration. Contract proponents argue that consideration does exist under the GPL. But ultimately, they are unable to show that there is a meeting of minds between the licensor and licensee, thus failing the requirements of contract formation.

This Article proposes that version 2 of the GPL and draft 2 of version 3 of the GPL are a failed contract, lacking consideration. It argues that the license can be enforced through state promissory estoppel law and the Copyright Act. To strengthen the GPL and other open source licenses, the Article recommends that the Copyright Act be amended to provide a federal cause of action for all copyleft-related claims.

This Article furthermore addresses the issue of standing to enforce the GPL. It discusses how the GPL can be wielded as a defense in a copyright action, under the unclean hands and copyright misuse doctrines.

Keywords: GPL, GNU, open source, Free software, Linux, copyleft

Accepted Paper Series