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Mben 05-02-2006 07:05 AM

GPL, BSD, MIT, ... : License or Contract?
Hi everybody,

I'me working on different free/open source license and I have some difficulty to understand the differences between license and contract...:scratch:
This question seems to be usefull, since I saw that the GPL v3 is said expressly to be a license, not a contract...


BEnjamin JEAN

ledow 05-03-2006 08:25 AM

Firstly, this depends a lot on the country you are in. In some European countries they are defined as the same thing.

Basically, I think it boils down to a contract is something that everyone sees, agrees to and signs before they are given anything - it has time limits and other things. It is also between just a few named parties who all know each other. "These are the rules, this is what you can do, we know who you are and you've signed this piece of paper to say that you understand which we've all witnessed."

A license is a note attached to a book, bit of software etc. that says ANYONE may use this book/software provided that they stick to these terms - it allows conditional use by (virtually) anyone.

To use an English analogy, it's like putting a "Help Yourself To Any Of My Flowers That You Want" sticker on a bunch of flowers that you leave by the side of the road. Anyone can see that, so long as they follow your instructions, they can have some free flowers (or they have to put a penny in a tin, or whatever you specify - etc.). "So long as they follow these rules, anyone can do anything they like with X".

In the end, there's very little difference in they way that either are seen by a court and voilating either will get you into virtually identical trouble.

Mben 05-04-2006 03:04 AM

Thanks for your answer,

In fact, I am french and this difference is strange for me : both of the license and the contract are considering like contract...
But, I think I understood your explication, thanks!

Benjamin JEAN

jlliagre 05-04-2006 10:45 AM

While in the US legal system a license is a specific kind of contract, no such distinction exists in France, so GPL, MIT, BSD are all considered as contracts here.
Consequently, "End User License Agreement" usually translates to "Contrat de licence de l'utilisateur final" in French.

Mben 05-05-2006 03:26 AM

Is it enough?
I read some article on it, explaining that a licence is a permission, tolerance, wich can be contain in a contract. Or not.
But what is the utility? Why does the GPL v3 said expressly "this license is not a contract", or something like that?

I understand that the french law don't use this sort of license, but does a french contract is enough to express licensor's will?


jlliagre 05-05-2006 11:22 AM

Don't try to stick to the letter English words and their looking like French equivalent.

"Contrat" doesn't necessarily translates to "Contract", as my previous examples shows (CLUF -> EULA).

In any case, "license" seems to mean, in the US, that you are bound by state (California, NY, ...) laws while "contract" is about federal laws (USA).

As France is both a state and a country, no such distiction exists.

In any case, better not to violate the terms of a license to avoid trouble, wherever you are ...

Mben 05-06-2006 02:44 AM

Sure! Thanks!
Do you know any book where I would be able to find more about it?

AdaHacker 05-06-2006 11:48 AM


Originally Posted by jlliagre
In any case, "license" seems to mean, in the US, that you are bound by state (California, NY, ...) laws while "contract" is about federal laws (USA).

No, that's not correct. If anything, it would be the other way around, as the copyright act is federal legislation, while state law can and routinely does conver contracts.

By way of clarification, in the US, licenses in general are not restricted to matters of copyright. You also need a license to drive a car or hunt deer. So getting a license simply means you have premission for something you would not normally be allowed to do. In the case of the GNU GPL, you are given the right to distribute copies of the software, which is not normally allowed by copyright law.

On the other hand, a contract, under US law, must involve agreement and adequate consideration, i.e. fair compensation. A contract without consideration is, in general, not legally binding. That's why the GNU GPL and other free software licenses are not contracts under US law: they are unilateral grants of rights without any consideration. In other words, you get rights under the license, but you don't have to give the developer anything in return. Hence no contract.

Of course, you can certainly be given a license as part of the consideration involved in a contract. That's quite a common arrangement. As you know, many proprietary software packages have EULAs that are framed as contracts. However, a license does not necessarily imply a contract. That's the point of mentioning it in the GPL. They just want to be clear that, while most software companies try to make the license agreement into a contract, they are explicitly not doing that.

jlliagre 05-06-2006 03:20 PM


Originally Posted by AdaHacker
No, that's not correct. If anything, it would be the other way around, as the copyright act is federal legislation, while state law can and routinely does conver contracts.

You are right, my mistake, I confused them. My source was this article stating:
A lot of the confusion about the GPL stems from this central issue: Is the GPL a license or a contract? The reason this issue matters is that contracts are enforced under contract law, which is done state by state, and there are certain necessary elements to qualify as a valid contract. Licenses, instead, are enforced under copyright law at the federal level. The penalties available are not the same.

So that doesn't change my point which was such juridiction level distinction does not exist in France, unless we take into account EU laws ...

Thanks for your clarifications.

Mben 05-07-2006 08:56 AM

Thanks you two,
I would have understand the distinction.
To resume, in a license, licensee juste have to respect the license's conditions but in these conditions he do not have to give or do anything for the licensor.
In the other way, in a contract, Each part have to give or do something for the other part.

But what is more complex, is that, in the GPL and many other copyleft licenses, to have the right to use the software, you have to put all you contributions under the same license : Can't we consider that the licensor gave is work to have licensor work back? Like a contract?

Bradley Williams 05-07-2006 09:15 AM

The reason for that is to prevent, for example, a company from using parts of a free GPL program in software that will be sold for profit. It's really in the spirit of free software.

Mben 05-08-2006 05:22 AM

Yes, I know that. My opinion is that this copyleft is very useful to prevent bad use and it's faire. It seems less faire when it is use against other free/open source license (I know there are some exception like the FLOSS).
My question is if I permit somebody to do something (use my software, and modify it) if only he put is contribution under the same license, can't I think it looks like a contract?

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