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SYNTAX ERROR: AMBIGUITIES AND INTERPRETATION OF GPLV3 TERMINATION

Albert Ho

Stanford Law School

Directed Research under Professor Mark A. Lemley

April 12, 2012

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TABLE OF CONTENTS

ACKNOWLEDGEMENTS........................................................................................................................3

INTRODUCTION........................................................................................................................................4

PART I: INTERPRETIVE GUIDELINES...............................................................................................7

CONTRACT INTERPRETATION PRINCIPLES..........................................................................................9Four Corners of the Document..................................................................................................9Intent of the Parties..................................................................................................................10Interpretation against the Drafter............................................................................................11

PART II: TERMINATION, SECTION 8................................................................................................12

DIAGRAM OF TERMINATION UNDER THE GPL: AMBIGUITIES.....................................................14AMBIGUITY - SCOPE OF VIOLATION.................................................................................................15

Interpretation #1 – Termination of the license under Section 8 excludes other conditions unrelated to propagation and modification.......................................................................16

Interpretation #2 – Termination under Section 8 includes all other violations of the GPL’s terms..................................................................................................................................21

Interpretation #3 – Termination of the license includes some, but not all other possible violations of the GPL’s terms............................................................................................22

Implications..............................................................................................................................22AMBIGUITY - LIABILITY DURING CURE PERIOD...............................................................................23

Interpretation #1 – Liability exists, but only while violation is unremedied............................23Interpretation #2 – No liability exists while good faith efforts are undertaken to remedy the

violation.............................................................................................................................25Implications..............................................................................................................................26

AMBIGUITY – NO CESSATION, BUT NO NOTICE..............................................................................27Interpretation #1 – No reasonable notice means no opportunity to cure................................27Interpretation #2 – No reasonable notice means cure within a reasonable period of time; first

time notice would trigger window again...........................................................................29AMBIGUITY – SUBSEQUENT RECEIPT OF NOTICE.............................................................................31

Interpretation #1 – Second receipt of notice truncates cure period........................................31Interpretation #2 – Second receipt of notice is ineffective until after cure period expires......31Implications..............................................................................................................................32

AMBIGUITY – STATUS OF LICENSE AFTER CURE PERIOD EXPIRES..................................................32Interpretation #1 – License is permanently terminated...........................................................33Interpretation #2 – Provisional reinstatement is still possible at the copyright holder’s option

to terminate........................................................................................................................34Implications..............................................................................................................................35

PART III: CONCLUDING REMARKS.................................................................................................36

SUGGESTED IMPROVEMENTS............................................................................................................36Scope of Violation....................................................................................................................36Liability During Cure Period...................................................................................................37No Cessation but No Notice.....................................................................................................37Second Receipt of Notice..........................................................................................................38Status of License after Cure Period Expires............................................................................38

CONCLUSION.....................................................................................................................................38

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ACKNOWLEDGEMENTS

I would like to gratefully acknowledge Mark A. Lemley, William H. Neukom Professor

of Law at Stanford Law School, for his guidance and help throughout the writing of this paper.

He offered invaluable insight and expertise in helping to identify and analyze the issues pertinent

to the GPL and also assisted in focusing the scope of my research. I thank him for his

enthusiastic support.

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INTRODUCTION

The GPL, or GNU General Public License, is now in its third variant. The first version

was originally written by Richard Stallman in 1989, with a simple purpose in mind: “to defend

the freedom of every user of a free program.”1 Over the next twenty years, the GPL was revised

twice, both to address workarounds and deficiencies in the language. Since its inception, the

GPL has risen meteorically in popularity, now accounting for nearly 65% of open source projects

on Freshmeat as of August 2007, and 68% of projects listed on SourceForge.net.2 The vision

behind drafting the original GPL, to provide software that is free to run, modify, and redistribute,

remains the same today.3 This “freedom” refers not to price, but “freedom as in liberty,” and is

meant to capture the concept of unencumbered use of software.4

The GPL tries to implement this vision through “copyleft” provisions, which give

everyone the right to “run the program, copy the program, modify the program, and distribute

modified versions—but not permission to add restrictions of their own.”5 While free to use, the

1 John Tsai, For Better or Worse: Introducing the GNU General Public License Version 3, 23 Berkeley Tech. L.J. 547, 547 (2008). For the full text of the GNU General Public License version 3.0, see http://www.gnu.org/licenses/gpl-3.0.html (last visited February 15, 2012) [hereinafter GPLv3].

2 See Id. at n. 4 (“[The GPLv2] is now one of the most popular free and open source software licenses in the world”). See also GNU General Public License: History, available at http://en.wikipedia.org/wiki/GNU_General_Public_License (last accessed February 15, 2012); The History of the GPL, available at http://www.free-soft.org/gpl_history/ (last accessed February 15, 2012);

3 See Richard Stallman, The GNU Project: Free as in Freedom, available at http://www.gnu.org/gnu/thegnuproject.html (last accessed February 15, 2012).

“The term “free software” is sometimes misunderstood—it has nothing to do with price. It is about freedom. Here, therefore, is the definition of free software. A program is free software, for you, a particular user, if:

You have the freedom to run the program as you wish, for any purpose. You have the freedom to modify the program to suit your needs. (To make this freedom

effective in practice, you must have access to the source code, since making changes in a program without having the source code is exceedingly difficult.)

You have the freedom to redistribute copies, either gratis or for a fee. You have the freedom to distribute modified versions of the program, so that the community

can benefit from your improvements.”4 Id. See also John Tsai, For Better or Worse: Introducing the GNU General Public License Version 3, 23

Berkeley Tech. L.J. 547, 549 (2008).5 See For Better or Worse at 551 (“The GPL was (and is) a ‘copyleft,’ or reciprocal license:

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GPL imposes the requirement that anyone who adds to or combines her own software with GPL-

licensed code to license the combination under the GPL as well.6 This gives rise to the “viral”

nature of the GPL; by failing to subsequently license such modified or combined source code

under the GPL, one stands in violation of its license, leading to revocation of all rights granted

under the GPL.7

The question of GPL enforceability has been raised in court several times, but never has a

court found the GPL unenforceable.8 This inconclusiveness raises the question of the GPL’s

ultimate enforceability in a fully-litigated case, but the empirical data suggest that the GPL has

teeth.9 Eben Moglen argues that all cases settling out of court is strong evidence of the GPL’s

validity.10 However, the frequency of settlement may not paint the whole picture. One factor

that may induce settlements is the relatively low cost imposed by compliance with the GPL as

compared with the relatively high costs of litigation: the release of the combined or modified

any derivative work of a copyleft-licensed work must be licensed under the same license.”)6 Id.7 See Lothar Determann, Dangerous Liaisons -- Software Combinations as Derivative Works? Distribution,

Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 Berkeley Tech, L.J. 1421, 1483 (2006) (writing about Section 2(b) of the GPLv3, “This requirement [of reciprocal licensing] either has a ‘viral’ or ‘immunizing’ effect on licensees, depending on the licensee's objectives”).

8 See James G. Gatto, Doubts Wane Over GPL Enforceability, p. 2, available at http://www.pillsburylaw.com/siteFiles/Publications/A9A22185D029BBE6EAA4332F1A7249E2.pdf (last accessed February 15, 2012) (“Significantly, no case has held the GPL to be unenforceable. On the contrary, in a number of rulings, U.S. and German courts have rendered decisions acknowledging the enforceability of the GPL”). See also e.g. Wallace v. Free Software Foundation, Inc. 2005 U.S. Dist. LEXIS 31728, 7-8 (S.D. In. 2005) (finding that the GPL is a vertical agreement which involves different levels of users in the chain of distribution and is therefore insufficient to form the basis of a per se antitrust violation).

9 See e.g. Doubts Wane Over GPL Enforceability at 2; Regarding the success of a non-profit organization that helps enforce the GPL in Germany, see About the gpl-violations.org project, available at http://gpl-violations.org/about.html#history (“By June 2006, the project has hit the magic "100 cases finished" mark, at an exciting equal "100% legal success" mark. Every GPL infringement that we started to enforce was resolved in a legal success, either in-court or out of court”).

10 See Eben Moglen, Free Software Matters: Enforcing the GPL, II, available at http://emoglen.law.columbia.edu/my_pubs/lu-13.html (“Much murmuring has been going on in recent months to the supposed effect that the absence of judicial enforcement, in US or other courts, somehow demonstrates that there is something wrong with the GPL . . . Precisely the reverse is true. We do not find ourselves taking the GPL to court because no one has yet been willing to risk contesting it with us there”) (Sept. 10, 2001); id. (“Despite the FUD [fear, uncertainty, and doubt], as a copyright license the GPL is absolutely solid. That's why I've been able to enforce it dozens of times over nearly ten years, without ever going to court”) (emphasis and explanatory brackets added).

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source code that is licensed under the GPL.11 Many industry participants who are sued also have

no malicious intent in mind; they are ready and willing to work with the copyright holders in

order to bring themselves into compliance with the GPL’s requirements.12 Furthermore, the

question remains whether one provision of the GPL someday being found unenforceable would

render the entire GPL unenforceable as well.13

This paper attempts to pick up where other cases have stopped (i.e. settled). It will

analyze the termination provision of the GPLv3 by first identifying ambiguities in the drafted

language. It then explores possible interpretations that address those ambiguities and surveys the

implications of those interpretations. From a methodological standpoint, the analysis will derive

from the plain text reading of the language, general contractual interpretive principles, and

common law theories of contract validity. The purpose of this document is to be a practical

guide to termination, for both licensors and licensees alike. Part I of this document looks at the

interpretive guidelines that will inform the analysis and outlines the relevant portions of the GPL

related to termination. Part II identifies the ambiguities arising from the language, possible

11 See Id. (“In approximately a decade of enforcing the GPL, I have never insisted on payment of damages to the Foundation for violation of the license, and I have rarely required public admission of wrongdoing. Our position has always been that compliance with the license, and security for future good behavior, are the most important goals”); Compliance is the Goal, available at http://www.fsf.org/blogs/licensing/2009-05-settlement; In answering the question, “What damages to do you request when a case goes to court?” GPL-violations.org answers “From a (.de) legal point of view, damages are a totally different issue from the 'cease-and-desist' issue. So in all cases that went to court so far, we've only enforced the latter.” GPL Violation Legal FAQ, available at http://gpl-violations.org/faq/legal-faq.html (last accessed February 15, 2012).

12 See supra at n. 11. See also Ryan Paul, SFLC tech director finds one new GPL violator every day, available at http://arstechnica.com/open-source/news/2009/11/sflc-tech-director-finds-one-new-gpl-violator-every-day.ars (“Most GPL violations are mere accidents or the result of simple negligence” and quoting Bradley Kuhn, tech director at the SFLC, that a better course of action “going public” with a potential violation is to take a reasonable and friendly approach to opening enforcement actions); Bradley Kuhn, GPL Enforcement: Don’t Jump to Conclusions, But Do Report Violations, available at http://ebb.org/bkuhn/blog/2009/11/08/gpl-enforcement.html (November 8, 2009).

13 All versions of the GPL omit a severability clause, which would uphold other parts of the GPL even if some parts were found unenforceable. See generally Severability, available at http://en.wikipedia.org/wiki/Severability (last accessed February 15, 2012). This may have been intentional because of the heavy emphasis of the GPL to be interpreted as a license only, and not a contract. Eben Moglen, Enforcing the GPL, available at http://www.gnu.org/philosophy/enforcing-gpl.html (Sept. 10, 2001).

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interpretations that fill in those gaps, and implications consonant with those interpretations such

as what remedies would be available to the licensor. Part II will also address some unsettled

issues of law relating to copyright and the GPL along the way, but will not provide an original

analysis of these issues. Part III concludes with suggested improvements to the termination

section that may help reduce ambiguity and align incentives with the intent and purpose of the

GPL in mind.

PART I: INTERPRETIVE GUIDELINES

In 2001, Eben Moglen, General Counsel of the Free Software Foundation, wrote that the

GPL is a license, not a contract.14 In making that assertion, Moglen began a long debate about

the enforceability of the GPL, a question that is still yet to be tested by courts.15 Two concerns

probably fueled his need to argue for this distinction: (1) the fear that if the GPL were found to

be a contract, injunctive relief would not be an available remedy to violations, and (2) that

certain contractual elements, such as offer, acceptance, and consideration, could not be met.16

The debate over enforceability has receded in prominence today, due in part to the Free Software

Foundation’s success in exacting settlements over litigated GPL violations17 and the Federal

Circuit’s decision in Jacobsen v. Katzer.18 Though the license at issue in Jacobsen was not the

GPL, but the lesser-used Artistic License, the Artistic License bears many similarities to the 14 Eben Moglen, Enforcing the GPL, available at http://www.gnu.org/philosophy/enforcing-gpl.html (Sept.

10, 2001) (claiming that the position that the GPL cannot be enforced is based on a misunderstanding of the GPL as acting as a license and not a contract).

15 See supra notes 8-10 and accompanying text.16 See Gomulkiewicz, Robert W., Conditions and Covenants in License Contracts: Tales From a Test of the

Artistic License, 17 Tex. Intell. Prop. L.J. 335, 345 (“Two primary issues probably fueled the need to argue for [Eben Moglen’s distinction that the GPL is a license not a contract . . . (2) a concern that certain contract formalities could not be met, primarily manifestation of assent by the licensee and exchange of consideration”).

17 See GPL-violations.org website noting that “By June 2006, the project has hit the magic ‘100 cases finished’ mark, at an exciting equal ‘100% legal success’ mark. Every GPL infringement that we started to enforce was resolved in a legal success, either in-court or out of court.” GPL Violations Homepage, available at http://gpl-violations.org/about.html (last accessed February 14, 2012). See also infra note 9 and accompanying text.

18 Jacobsen v. Katzer, 535 F. 3d. 1373 (Fed. Cir. 2008).

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GPL; most notably, the Artistic License is a FOSS, or “Free and Open Source Software” License

employing copyleft.19 The important holding in Jacobsen vis-à-vis open source licenses is that

injunctive relief is an available remedy to the open source licensor, and that there is little doubt

that open source licenses meet the standards required by modern contract law for the formation

of an enforceable agreement.20

For interpretive purposes, however, the distinction of pure license versus contract is not

of significant consequence. The fact is that most licenses are contracts, and the differences

(aside from remedies) arising from that distinction are semantic.21 Furthermore, contract law is

one of the most important ingredients to interpreting licenses.22 Though the GPL calls itself a

“license,” it creates a set of binding obligations on both licensor and licensee.23 The rights-

granting portion of the GPL could accurately be called the actual “license,” but the GPL

envelops the rights grant by placing many conditions on the licensee.24 Thus, the interpretation

of the GPL, like that of other licenses, relies on the guiding principles of contract law to inform

the meaning of the language.

19 See supra at 4; see also Jacobsen at 1376 (“[Jacobsen] makes that code available for public download from a website without a financial fee pursuant to the Artistic License, an ‘open source’ or public license”).

20 See Robert W. Gomulkiewicz, Conditions and Covenants in License Contracts: Tales From a Test of the Artistic License, 17 Tex. Intell. Prop. L.J. 335 (2009); Jacobson at 1381-82 (“Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right”).

21 Infra note 20 at 346 (“Confusion in the open source community about the meaning of the term "license" also may have played a role. There seems to be a mistaken belief that things are either licenses or contracts when, in fact, most of the time they are both contracts and licenses - that is, contracts that contain licenses.”)

22 See Robert W. Gomulkiewicz, The Federal Circuit's Licensing Law Jurisprudence: Its Nature And Influence, 84 Wash. L. Rev. 199, 211, (“Licenses are contracts, so licensing law fundamentally involves contract law”).

23 See also John Tsai, For Better or Worse: Introducing the GNU General Public License Version 3, 23 Berkeley Tech. L.J. 547, 564 (2008) (noting that the GPLv3 modifies the language of the copyleft obligation slightly, but retains the spirit); GPLv3 Section 5(c) (“You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it”) (emphasis added).

24 See supra note 20 at 346 (“To be most accurate, the entire contract should be called the ‘license contract’ n95 and the rights-granting part of that license contract should be called the ‘license’”).

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Contract Interpretation Principles

Four Corners of the Document

The first step of contract interpretation in the context of software is to look at the “four

corners” of the document and seek to employ the meaning intended by both parties to the

contract.25 Where the language of the contract is clear and unambiguous, courts will be reluctant

to look to extrinsic evidence to inform the meanings of the text.26 Where the meanings are not

agreed upon by the parties to the contract, a court should interpret the meaning in light of all the

circumstances.27 This presents a challenge to GPL interpretation since the drafting party and the

licensor may not be one and the same. For example, there is significant evidence of intent of the

drafters of the GPL in the form of FAQs28 and articles written on GNU philosophy29 that would

potentially be relevant towards resolving ambiguities within the text, but the question remains

whether this extrinsic evidence is relevant to the specific licensor and licensee. Finally,

principles of software contract interpretation also recognize that trade usage or industry custom

25 See Principles of the Law of Software Contracts § 3.09(a) (“Words or conduct should be interpreted in accordance with the meaning intended by both parties”); See also id. at cmt. A. (“. . . even if that meaning [of the parties to the contract] is inconsistent with an objective interpretation of the words or conduct. This subsection follows the Restatement Second of Contracts § 201(1), and is also consistent with freedom of contract because it enforces the parties' actual intentions.”); Van Linberg, Intellectual Property and Open Source: A Practical Guide to Protecting Code, p. 143.

26 See id. § 3.09(d) (“If a term or terms is ambiguous, extrinsic evidence is admissible to prove the meaning of the term or terms”). With respect to intent of the drafting parties, see also e.g. Lothar Determann, Dangerous Liaisons -- Software Combinations as Derivative Works? Distribution, Installation, and Execution of Linked Programs Under Copyright Law, Commercial Licenses, and the GPL, 21 Berkeley Tech, L.J. 1421, 1490 (2006) (“Courts typically try to determine the intent of the contracting parties as objectively evident to each other at the time of contract formation. Where the contract language is clear and unambiguous, courts will not usually look to extrinsic evidence of intent”).

27 See supra note 25 (“What would a reasonable person with knowledge of the circumstances believe the words or conduct mean, not what either of the parties actually thought the language meant”).

28 See Frequently Asked Questions about the GNU Licenses, available at http://www.gnu.org/licenses/gpl-faq.html (last accessed February 14, 2012).

29 For some examples of these articles (e.g. Copyleft: Pragmatic Idealism, What is Free Software?, etc.), visit Philosophy of the GNU Project, available at http://www.gnu.org/philosophy/philosophy.html (last accessed February 14, 2012).

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can inform the interpretation of contract terms, but does not typically allow such usage to

contradict the drafter’s intended meaning when clear.30

Intent of the Parties

As stated above, an extrinsic source that courts will examine in resolving ambiguities in

contractual language is the intent of the parties to the contract.31 This principle, however, does

not fit neatly into the open source licensing framework. The GPL, along with other open source

licenses, avails itself to developers wishing to license their software under its terms by requiring

the copying and pasting of the license into their human-readable source code.32 Some of these

developers may choose to license their source code under the GPL for its ubiquity without

necessarily adhering to all of its ideological constructs.33 This raises the question of whose intent

is relevant: the intent of the actual GPL drafter or the intent of the software programmer who

chose to adopt the GPL as her license of choice.34 On one hand, the GPL requires the adoption

of its terms without modification, and therefore licensors ought to know and agree with the intent

of its drafters; in other words, the actual drafters’ intent may be relevant to an accurate

interpretation of the GPL language.35 On the other hand, because the programmer lacks the

ability to modify any of the GPL’s terms and lacks freedom in picking and choosing between

30 See Principles of the Law of Software Contracts § 3.08 (“evidence of course of performance, course of dealing, and usage of trade is admissible to supplement a record”).

31 See supra note 25. 32 See How To Apply These Terms To Your New Program, available at http://www.gnu.org/licenses/gpl-

3.0.html (last accessed February 14, 2012) (explaining that the most effective way to apply the GPL is to attach verbatim notices to the start of each source file along with a disclaimer about warranties and a link to where the GPL can be found).

33 See supra and accompanying note at 2.34 See Gomulkiewicz, Robert W., Conditions and Covenants in License Contracts: Tales From a Test of the

Artistic License, 17 Tex. Intell. Prop. L.J. 335, 349 (noting that it is difficult to determine the intent of the parties, which is the programmer’s intent and the intent of the licensee).

35 Id. at 350 (“But should [the GPL drafter’s intent] matter from a legal point of view? Often the answer will be clearly ‘no’).

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provisions of the GPL, the intent of the drafters may not conform to that of the copyright

holder.36 Likewise, programmers who modify existing source code licensed under the GPL are

bound by the GPL’s copyleft provisions to subsequently license their source code under the

GPL.37 Anexample of the potential for ideological break came to light when Linus Torvalds,

author of Linux which is licensed under the GPLv2, voiced that he did not agree with the Free

Software Foundation’s broad interpretation of when the “share alike” provision of the GPL was

triggered.38 Yet, programmers who adopt the GPL may very well share the same ideals of free

and open software (“FOSS”) and may adopt the GPL for exactly what the drafters stand for and

tomake a statement that they belongs to the open source community.39 The GPL may thus serve

as a social compact or constitution for open source developers, and the intent of the adopter may

overlap considerably with that of the original drafters.

Interpretation against the Drafter

It is a well known rule in contract interpretation that ambiguities should be interpreted in

favor of the non-drafting party.40 Some states, like California, go so far as to codify the common

law. For instance, Section 1654 of the California Civil code provides "In case of uncertainty . . .

the language of a contract should be interpreted most strongly against the party who caused the

36 Id.; See Dangerous Liaisons at 1490 (“[C]ourts will probably find that neither party really had a choice--the GPL came to apply because a developer of a previous program version had opted for the GPL”).

37 Id.38 See Conditions and Covenants in License Contracts at 350-51. See also Kerner, Torvalds Still Keen on

GPLv2, available at http://www.internetnews.com/dev-news/article.php/3720371/Torvalds+Still+Keen+On+GPLv2.htm (January 8, 2008) (“GPLv3, he continued, is about achieving the goals of the Free Software Foundation, which is the organization that manages the GPL and led the effort to create the GPLv3. In Torvalds' view, there has always been a tension between the FSF and Linux” (quoting Linus Torvalds).

39 Id. (“In this situation [where the developer wants to signal something to the community], the open source license serves as something like a social compact or constitution n117 as well as a contract”).

40 See Restatement 2d of Contracts, § 206 (“In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds”).

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uncertainty to exist."41 It is worth noting however, that this rule is generally only applied in

cases where the uncertainty already exists, thus precluding its usage in unambiguous cases.42

Again in California, this rule is expressly recognized by courts to apply in the context of licenses

as well.43

This rule also suffers from the same problems that plague using the intent of the drafter to

assist in interpretation.44 Because the party selecting the GPL is not in the technical sense the

drafter of the license, it is unclear to who is to blame for the uncertainty and therefore to whose

benefit the ambiguity should adhere.45 For instance, the programmer may have been forced into

licensing under the GPL because of copyleft, and therefore may not be to blame for any

ambiguities thereof.. On the other hand, the programmer still chose to either adopt or make

modifications to GPL-licensed source code and should therefore have knowledge that such code

would require adherence to the GPL’s terms and conditions. In that case, it may make sense to

interpret the GPL in favor of the party against whom the GPL is asserted.46

PART II: TERMINATION, SECTION 8

This section applies the above principles to an interpretation of the termination provision

of the GPL and ambiguities that arise from the interpretation. To begin, one must look at the

“four corners” of the document47; in this case, that consists of the actual termination provision

and the relevant definitions within the GPL:

41 See California Civil Code § 1654.42 Id.43 See e.g. Apple Computer Inc. v. Microsoft Corp. 759 F. Supp. 1444, 1451 (N.D. Cal. 1991) (finding that

under California Law, ambiguities in written license agreement are interpreted against drafter).44 See supra note 35.45 See Dangerous Liaisons at 1490 (“In cases where neither party has selected the GPL to apply for a

particular modified program, however, it is not clear that either party is to blame for the GPL's uncertainties”).46 See supra note 37 and accompanying text.47 See supra note 25.

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8. Termination.48

You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11).However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.Termination of your rights under this section does not terminate the licenses of parties who have received copies or rights from you under this License. If your rights have been terminated and not permanently reinstated, you do not qualify to receive new licenses for the same material under section 10.

As is evident from the plain language, the termination section is loosely broken up into

four sections (based on the paragraphs). The first paragraph explains that certain violations, i.e.

“propagating or modifying a covered work except as expressly provided,” trigger automatic

termination of rights under Section 8.49 The next paragraph can be interpreted as a provision that

allows for cure of breaches under the Section 8 in certain circumstances.50 For reasons that will

be explained below, it appears that availability of the cure provision in this paragraph is only

available for subsequent violations of the GPL. The third paragraph takes the idea of curing

GPL violations one step further and provides a slightly more lenient cure provision for first time

violators of the GPL.51 Finally, the last paragraph preserves downstream licenses based on the

work in question.52 The following diagram illustrates the general structure of the termination

provision of the GPL as well as areas of potential ambiguity:

48 GPLv3 §8.49 Id. 50 Id.51 This greater lenience is because of the possibility of permanent reinstatement even after receiving notice

of the violation, whereas for subsequent violations of the GPL, cessation of all violation under its terms is first required. Id.

52 Id.

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Diagram of Termination under the GPL: Ambiguities

14

Qualifying Violation Rights Automatically Terminated

No Reasonable Notice

Provisional Reinstatement

Permanent Reinstatement

Ambiguous – No Cessation, But No NoticeDoes the violator have the option of curing the violation? This may encourage violators to inform © holders so they can receive notice.

Cessation of all Violation

Ambiguous – Perverse IncentivesPermanent Reinstatement; notice how this creates incentives to hide violations of the GPL

Ambiguous – Liability During CureIs the violator liable for © infringement in this period?

Ambiguous – Scope of ViolationWhat constitutes a violation (propagate/modify in a way contrary to that provided in license, or other?)And does this trigger a different kind of remedy (specific performance vs. © infringement

Reasonable Notice Given

© Holder’s Option Has Expired

No Reasonable Notice Received

No Cure, or Cure > 30 days

Cure w/in 30 days Permanent Reinstatement

Ambiguous – Multiple NoticeCan the © holder give notice multiple times to prevent permanent reinstatement?

No Reasonable Notice

© Holder Expressly Terminates

Termination

Ambiguous – License After Cure Period ExpiresAre your rights permanently terminated, or can you still receive provisional reinstatement at the © holder’s option to terminate?

< 60 days elapse

> 60 days elapse

No Cessation of Violation

First Time Receiving Notice

Subsequent Notice Received

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The diagram on the previous page illustrates the process of termination under GPL

Section 8, based on a plain reading of its language. The dashed bubbles represent areas of

ambiguity either in the drafting or in the expected behavior of termination. Part III is organized

so that each ambiguity and concomitant issue is explored; because some ambiguities result from

issues of unsettled substantive law, Part III will briefly discuss the literature rather than go into a

full analysis of these issues. For each ambiguity, multiple interpretations are offered, and both

legal and practical implications of those interpretations are explored.

Ambiguity - Scope of Violation

The first ambiguity arises from the way Section 8 is triggered in the GPL. Paragraph 1 of

this section states that “[a]ny attempt otherwise to propagate or modify [a covered work] is void,

and will automatically terminate your rights under this License (including any patent licenses

granted under the third paragraph of section 11).”53 By its plain meaning, it is clear that the

license is revocable under the condition that a covered work is not properly propagated or

modified.54 An ambiguity exists in defining what actions, aside from those expressly prohibited,

fall under this section in the absence of language stating that termination is triggered.

For example, because the termination provision only contemplates improper

propagation or modification, what would happen when a violator violates the use conditions of

the licensed work? Section 7 of the GPL allows licensors to supplement the terms of the GPL

in certain ways.55 Under Section 7, a licensor can add in additional terms56:

c) Prohibiting misrepresentation of the origin of that material, or requiring that modified versions of such material be marked in reasonable ways as different from the original version; or

d) Limiting the use for publicity purposes of names of licensors or authors of the material; or

53 GPLv3 §8.54 Id.55 GPLv3 §7.56 Id.

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e) Declining to grant rights under trademark law for use of some trade names, trademarks, or service marks.

Suppose that a licensor puts in an additional term, pursuant to Section 7(c), prohibiting

misrepresentation of the origin of the covered work. A licensor may do this for a number of

reasons; if the contribution is significant, it could give her recognition in the software industry

and possible remuneration. If a downstream licensee took the material, added his own

modifications, but then failed to give credit to the licensor, would he be in breach of the

license agreement, leading to automatic termination of his license?

Conversely, suppose a wary licensor who favors anonymity adds a condition that limits

the use of her name in order to create distance from the ideological FOSS movement. Under

Section 7(d), she is able to add a provision stating that her name must be removed from all

downstream uses of her software addition. If a licensee then fails to obey her directive, now

an express license term, and mistakenly credits her in subsequent additions to the work, what

liability results to the licensee? Would this action fall under the scope of Section 8 of the

GPL, triggering an automatic termination of rights? Or would there be an intermediate

remedy, rooted in contract law?

Interpretation #1 – Termination of the license under Section 8 excludes other conditions

unrelated to propagation and modification

This interpretation adheres most closely to the text. Section 8 states that “any attempt

otherwise to propagate or modify it is void, and will automatically terminate your rights under

this License (emphasis added).”57 The plain meaning suggests that only attempts to propagate

or modify not in conformance with the conditions of the license will trigger automatic

termination. While propagation and modification encompass nearly all rights granted under 57 GPLv3 §8.

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the GPL, they do not subsume the set the actions allowable under its terms.58 For instance, the

patent license under Section 11 of the GPL grants the “a non-exclusive, worldwide, royalty-

free patent license under the contributor's essential patent claims, to make, use, sell, offer for

sale, import and otherwise run, modify and propagate the contents of its contributor

version.”59 These rights are additional to those granted to modify and propagate the covered

work. Thus the universe of rights granted under the GPL may look something like the

diagram below:

58 Id. See also supra at 58.59 GPLv3 §11.

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Modify

Propagation

Convey

Copyright Rights under License GPL § 2Fair Use

Make, Use, Sell, Offer for Sale, and otherwise Run

Patent Rights under License GPL § 11Propagation andModification that requires both Copyright and Patent rights

Violations Triggering Termination under GPL §8

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The diagram shows that rights are essentially licensed under two bodies of law: copyright and

patent. The right to propagate includes any rights that would ordinarily make one primarily or

secondarily liable for copyright infringement:

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.60

60 GPLv3 §0.

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Make (copies)

Modify

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Rights under fair use would not need to be licensed, and are therefore excluded from the license

grant.61 Patent rights include the right to “make, use, sale, offer for sale, and otherwise run,

modify and propagate” the work.62 Since modification and propagation may in some

circumstances implicate both rights needed under patent and copyright law, these circles of rights

may intersect.

The termination provision states that only improper attempts to propagate or modify will

trigger the automatic termination of all rights.63 Under this interpretation, actions falling outside

the expressly enumerated scope in Section 8 would not trigger automatic termination, but some

other reaction. What reaction and what remedies are available to the violator is the pertinent

question. One possibility is that a court may find that failing to comply with a condition to the

GPL is grounds for termination and thereby triggers potential copyright infringement.64 This

theory comports with the Federal Circuit’s decision in Jacobsen v. Katzer, which held that if a

licensee fails to abide by a condition placed on the license grant, he or she infringes the

licensor’s copyright.65 This holding is highly relevant to GPL licensors because it implies that

injunctive relief is an available remedy for breaches of open source license conditions.66 Often

61 GPLv3 §2.62 GPLv3 §11.63 GPLv3 §8.64 See Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. Cal. 1999) (“If, however, a

license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement”).

65 See Gomulkiewicz, Robert W., Conditions and Covenants in License Contracts: Tales From a Test of the Artistic License, 17 Tex. Intell. Prop. L.J. 335, 343 (noting that the first lesson taught by Jacobsen was that failing to abide by a condition of a license renders the violator vulnerable to copyright infringement); Jacobsen v. Katzer, 535 F. 3d 1373, 1381 (“Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material” and citing Gilliam v. ABC, 538 F.2d 14, 21(2d. Cir. 1976), for the "unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright”).

66 See Jacobsen at 1382 (“Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief”).

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times, monetary damages are beside the point to FOSS licensors.67 Rather, FOSS licensors

prefer licensees who modify, copy, or distribute their code to publicly release the source code.68

The alternative theory is that failure to comply with provisions of the GPL outside of

propagation and modification results only in a breach of contract. This view rests on the

assumption that the actual license grant of the GPL is wholly contained in Sections 2 and 11 of

the GPL69; the rest of the provisions are contractual between the parties in privity with one

another. However, this position may be difficult to defend given the problems with identifying

the components of a contract, including offer, acceptance, and consideration and separating

ideologically contractual requirements from license requirements.70 For this reason, inter alia,

Eben Moglen has advocated the position that the GPL is a license only and not a contract.

Additionally, the operative language of the license grant in the GPL bears similarities to the

language that convinced the Jacobsen court to find that the Artistic License created conditions to

the license and thus allowed copyright infringement as an action to breach of the license.71 Yet,

it is worth noting that several commentators believe that the distinction between license and

contract is blurred.72 Another practical concern with this interpretation is the difficulty in

separating material from non-material breaches of the GPL. Since there are no guidelines

(textual or extrinsic) with regard to this matter, a court would need to rely on an artificial

67 Infra note 11 and accompanying text.68 Id.69 See supra notes 58, 60.70 See supra note 16.71 In GPLv3 §2, the actual license grant uses the language, “All rights granted under this License are

granted for the term of copyright on the Program, and are irrevocable provided the stated conditions are me” (emphasis added). The operative language of the Artistic License that convinced the Jacobsen court was “provided that.” See Jacobsen at 1381 (“Under California contract law, "provided that" typically denotes a condition”). While “provided the” and “provided that” are not identical, they do seem to be functionally equivalent.

72 See e.g. Nimmer, Licensing in the absence of intellectual property rights, available at http://www.ipinfoblog.com/archives/licensing-law-issues-licensing-in-the-absence-of-intellectual-property-rights.html, (“A ‘license’ is a contract.  It sets conditions on use of informational assets. . . . The contractual agreement is the essential factor.”) (February 28, 2008); Van Linberg, Intellectual Property and Open Source: A Practical Guide to Protecting Code, p. 136; Milgrim on Licensing §5.73 (finding that interpretation of licensing disputes are essentially contract disputes, except in cases of the Copyright Act’s compulsory licensing provision).

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distinction between material and non-material breach that would likely not satisfy either party.

Without textual clues, a court would understandably be reluctant to engage in this analysis.

Interpretation #2 – Termination under Section 8 includes all other violations of the

GPL’s terms

This reading would impose the strictest terms on a licensor, but would require reading

beyond the text of the Section 8. While such an interpretation would alleviate the remedies

problem and ambiguities associated with Interpretation #1, this interpretation is unlikely to gain

traction. Because this interpretation implies that any violation of the terms of the GPL, whether

material or immaterial, results in a termination of all the rights granted under the GPL, it would

render the Section 8 language redundant: in other words, there would be no need for Section 8 to

state that, “any attempt otherwise to propagate or modify it is void (emphasis added).”73

Moreover, the specificity of the language in mentioning the defined terms propagate and modify

undercuts the view that the drafters intended to broaden the scope of termination to encompass

all actions. Finally, the preamble of the GPL also undercuts this theory: “For example, if you

distribute copies of such a program, whether gratis or for a fee, you must pass on to the

recipients the same freedoms that you received.”74 The preamble shows the reciprocal nature of

the license is conditioned on “distribution” of the program, a right encompassed within the

definition of “propagate.”75

73 GPLv3 §8.74 GPLv3, Preamble.75 Id.

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Interpretation #3 – Termination of the license includes some, but not all other possible

violations of the GPL’s terms

This interpretation offers a middle-ground between the first two interpretations, but again

suffers from the same line-drawing issues. Without textual evidence in support, a court would be

reluctant to apply this interpretation to GPL termination because of the difficulties inherent to of

identifying what other violations unrelated to propagation and modification would fall within the

termination section. This difficulty hearkens back to the issue of material and non-material

violations, and would require the court to take vast liberties in the process of filling in the gaps.

Implications

The only reasonable interpretation with respect to the scope of violation seems to be

Interpretation #1, which is based on the literal reading of the text. However, a violator would not

avoid penalty simply by arguing that his action did not fall under the scope of Section 8. As

stated above, the analysis would then pivot on whether the violation was a failure to abide by a

condition placed on the license grant or whether the violation triggered a material breach of a

condition in the larger license agreement.76 This debate would likely rage on heatedly, as the

difference in remedies can be stark. Injunctive relief could prove devastating to a software

developer who relied on GPL-licensed code as an integral part to his software offering,

especially where the licensed code could not easily be recreated or replaced; conversely, other

remedies such as expectation damages may be small, especially if the violation was not material

in severity.

76 See supra at p. 18.

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Ambiguity - Liability during Cure Period

The second ambiguity arises in instances where a violation under Section 8 has occurred,

the rights granted under the GPL are automatically terminated,77 but the license eventually gets

reinstated. As can be seen in the diagram above, upon receipt of reasonable notice of the

violation, the first time violator has 30 days in which to cure the violation to receive permanent

reinstatement.78 Likewise, for subsequent violations, that same violator can receive a provisional

or permanent reinstatement after discovering the violation, then ceasing all violation of the

GPL.79 In both these cases, there is an intermediary period in which the rights granted under the

GPL are terminated, creating ambiguity with respect to liability during this period. Because in

these circumstances the GPL allows for eventual reinstatement of the license, the question

naturally arises: what liability, if any, results during the cure periods afforded by the GPL?

To answer this question, one must first ask the question of what kind of liability would be

present during this period of uncertainty. This question once again hinges on thinking about the

GPL as either a license or a contract.

Interpretation #1 – Liability exists, but only while violation is unremedied

If the rights grant under Section 4 of the GPL is interpreted as a promise not to sue the

licensee so long as he complies with the conditions of the license,80 then the licensor may regain

77 GPLv3 §8.78 See supra at p. 13 (diagram).79 Id.80 Licenses and covenants not to sue are closely related, and have been treated by courts as such. See e.g.

Spindelfabrik Suessen-Schurr Stahlecker & Grill GmbH v. Schubert & Salzer Maschinenfabrik Aktiengesellschaft, 829 F.2d 1075, 1081 (Fed. Cir. 1987) (“As a threshold matter, HN4a patent license agreement is in essence nothing more than a promise by the licensor not to sue the licensee”); Unarco Industries, Inc. v. Kelley Co., 465 F.2d 1303, 1307 (7th Cir. Ill. 1972) (“We hold the nonexclusive license agreement which was, in fact, a forbearance of suit . . .”).

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her right to sue during the cure period. It follows that once the license is reinstated (i.e. after

violation has ceased within the cure period), that licensor would lose her right to sue.

This interpretation may not be favorable to licensors because of the practical and

evidentiary issues of bringing suit within a limited window of opportunity. Moreover, the

automatic reinstatement provided by Section 8 might mean that actual violation of the GPL may

be hard to detect. For example, if a GPL licensee forgets to include prominent notices of the

GPL when conveying a modified work, that licensee would be in violation of the GPL and would

technically have his rights to convey the work terminated. That licensee, upon conveyance,

realizes his mistake and immediately corrects the error by including the notices. He then re-

conveys the work to his original recipients. In this case, the period between the GPL violation

and cessation of all violation happens very quickly –potentially too quickly for the original

licensor to detect the error and exercise her right to sue.

Another issue arises from this interpretation: What if the licensor claims that she has a

right to sue for the past copyright infringement that took place during the termination of rights

and reinstatement of rights, in spite of the fact that the licensee has had his license reinstated

under the GPL? The GPL does not make any mention of immunity during the intermediary

period. The licensee, on the other hand, may argue that the GPL fails to expressly state that

liability should result during the cure period, and that the ambiguity should be construed in his

favor.81 Moreover, interpretation in favor of the licensee furthers the GPL’s compliance driven

goals82 and would preserve the function of the cure period.83 For if liability existed even when the

81 See supra at p. 10.82 See supra note 11 for proposition that “Compliance is the Goal.”83 See e.g. Principles of the Law of Software Contracts § 3.12 (“Unless otherwise agreed, a party in breach

of contract may, on seasonable notice to the aggrieved party and at its own expense, cure the breach by making a conforming performance . . . [if certain conditions are satisfied]). Cf. cmt c. Principles of the Law of Software Contracts § 3.12 cmt. c (commenting that once the breaching party has cured, the aggrieved party must accept the cure; but the aggrieved party may still have a claim for damages of the original breach).

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violator was undertaking a good faith effort to remedy the violation, the cure period would be

redundant; the license would act as an on-off switch whenever there was compliance and non-

compliance with its terms, respectively.84 The strength of this argument may depend on industry

norms for software licensing; namely, whether cure periods normally allow the violator a certain

amount of time to remedy the violation without fear of reprisal.85 On the other hand, the damages

resulting from the time of GPL violation to the time of cure may be limited in period and scope;

and perhaps it is justifiable to impose a limited penalty for all such violations.

Interpretation #2 – No liability exists while good faith efforts are undertaken to remedy

the violation

A second interpretation argues that there is an implicit extension of the license so long as

the violator undertakes good faith efforts to remedy the violation. The reasoning behind this

interpretation lies in the intention of the drafters of the GPL and FOSS community. Judging by

the many settlements that have occurred over the course of the GPL’s lifespan, most settlements

end in a combination of monetary settlement, release of source code, and public apology.86 This

shows that most violators are willing to work towards a solution rather than fight the GPL on

ideological grounds. If damages could result during the violation period, even if the violation

84 For example, if licensee A was in compliance with the GPL’s terms, he would have a right to propagate and modify covered works pursuant to the GPL’s terms. If licensee A was not in compliance, he would not have this right. By arguing that the liability existed while a violator was trying to remedy the violation, one is essentially stating that the cure period acts in the same fashion. In other words, there would be no need for the cure period.

85 Is this a trade usage/ try to find a cite for this.86 For some authority on this, look at the SFLC’s press releases whenever they achieve settlement at

http://www.softwarefreedom.org/news/. An example is the settlement between BusyBox and Xterasys Corporation, where Xterasys agreed to stop distribution of its binaries until the SFLC confirmed it had published the offending source code on its website. Xterasys also agreed to appoint an internal compliance officer and make an undisclosed payment to the plaintiffs. BusyBox Developers and Xterasys Corporation Agree to Settle Lawsuit, available at http://www.softwarefreedom.org/news/2007/dec/17/busybox-xterasys-settlement/ (December 17, 2007); see also infra note 11 for support of the idea that monetary damages is not the end-goal of GPL enforcement.

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had been duly cured, this remedy may do more harm to the ideological goals of the GPL than

minor violations per se.87

A good faith exemption or immunity period may require reading beyond the text.

Because paragraph 1 of Section 8 states that “any attempt otherwise to propagate or modify [a

covered work] is void, and will automatically terminate your rights under this License (emphasis

added)”88 the plain meaning would seem to suggest that no implicit license is granted during the

time between violation and cure. Such an interpretation may also violate the principle that courts

should avoid reading in implicit terms into a contract when the language is clear.89 And as stated

above, limited liability to the violator may be preferable to losing the rights to the GPL-licensed

source code.90

Implications

Both interpretations raise the question of what sort of damages should be imposed if the

license is terminated in the intermediary period. Under the first interpretation, a copyright holder

could sue for separate instances of copyright infringement, such as unauthorized propagation and

modification of the covered work. The extent of damages will hinge on whether the licensee

actually did anything with the work that would normally give rise to direct or secondary liability

for copyright infringement.91 The accounting of damages may be statutory in nature, if the work

is registered, or alternatively, may be based on industry custom.

Additionally, the licensee may have to account for unauthorized usage during the

violation period as well. Section 11 of the GPL grants to licensees a “non-exclusive, worldwide,

royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer

87 See supra note 1 and accompanying text.88 GPLv3 §8.89 See supra at p. 9-10.90 See supra at p. 25.91 See supra note 60 and accompanying text.

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for sale, import and otherwise run, modify and propagate the contents of its contributor

version.”92 If the patent rights are revoked during the intermediary period, damages could be

based on a number of factors93 that could be used to derive a reasonable royalty.

Ambiguity – No Cessation, But No Notice

The third ambiguity exists because the Termination section of the GPL does not describe

what happens in the case of an unauthorized propagation or modification where the violator has

not ceased the violation but also has not received notice. This may arise in circumstances where

the violator is unaware of the violation, or in instances in which the copyright holder is not

informed about the violation. For comparison, if the violator does receive reasonable notice for

the first time from the copyright holder, he has 30 days with which to cure the violation in order

to receive permanent reinstatement of the license. Should the failure to receive notice be held

against the violator, in effect depriving the violator of an opportunity to cure and receive

permanent reinstatement of the rights granted by the GPL?

Interpretation #1 – No reasonable notice means no opportunity to cure

Under a plain reading of Section 8, the only provision for permanent reinstatement when

the violator has not ceased all violation is made when he receives notice from the copyright

holder for the first time with respect to “any covered work."94 This would normally suggest that

if no such notice is received, then the option to cure is never presented to the violator. Such an

interpretation is problematic on a few levels. First, if this were the case, then the violator would

have the awkward incentive of notifying the copyright holder that he had violated the terms of

92 GPLv3 §11.93 There are several methodologies courts employ to determine a reasonable royalty. One such method was

invoked by the District Court in Georgia-Pacific Corp. v United States Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970), mod. and aff’d, 446 F.2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971), where the court held that a reasonable royalty would be based on a negotiation between a willing licensor and willing licensee.

94 GPLv3 §8.

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the license. This could potentially open up the violator to liability.95 Additionally, the text states

that the violator must receive notice in order to have the option to cure.96 This means the violator

would be dependent on the copyright holder giving him reasonable notice of his violation in

order to trigger the cure period, even though notice is irrelevant since he is the one who notified

the copyright holder. This would also grant the copyright holder inordinate leverage in

subsequent negotiations between the two parties. If the copyright holder could “withhold”

notice, she could indefinitely prolong the termination of the licensable rights. This reading may

be contrary to the intent of the drafters as well, as it goes against the intention of the GPLv3 to be

more lenient than the GPLv2 by allowing for automatic reinstatement of rights under where the

violator received his first notice of a violation.97 Moreover, it penalizes the well-intentioned

violator for his efforts to notify the copyright holder so that he can cure the violation and receive

reinstatement of the rights.

Alternatively, what would happen if the violator were not so well-intentioned and

proceeded to remedy the violation on his own without ever notifying the copyright holder? In

this case, the violator would have the perverse incentive not to inform the copyright holder of the

violation. If 60 days were to elapse without the violator ever receiving notice, then under this

reading, the violator would have his rights permanently reinstated.

Another ambiguity arises if less than 60 days have elapsed after the violator has ceased

all violations under the GPL, and the violator has failed to notify the copyright holder of his

violation. Under Section 8, the copyright holder has an option to expressly terminate the license

95 See supra at p. 21-22.96 GPLv3 §8 (“your license from a particular copyright holder is reinstated permanently if . . .  this is the

first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice”) (emphasis added).

97 See Kuhn et. al., A Practical Guide to GPL Compliance, 5.2, available at http://www.softwarefreedom.org/resources/2008/compliance-guide.html (August 26, 2008) (“GPLv3 is more lenient. If you have distributed only v3-licensed programs, you may be eligible under v3 § 8 for automatic reinstatement of rights”).

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within this duration –that is, if the copyright holder knows of the violation at all.98 If the violator

hides the violation, a copyright holder in this instance may understandably be incensed at the

violator for failing to provide her with the details of the violation. That copyright holder may

wish to exercise her option to evoke a final termination of the licensable rights. However, in

doing so, it may be argued that the licensor would first need to give notice to the violator, which

would be the first time the licensee receives notice. This triggers an impossible scenario, where

the receipt of first notice grants a 30 day cure window; yet, since the violation is already cured

(which is a prerequisite for the licensor’s option to terminate), it falls squarely within the 30 day

window and is permanently reinstated.99 Because the license is permanently reinstated, the

copyright holder no longer has the right to expressly terminate the license, thus rendering her

option ineffective. The copyright holder/licensor may argue that the text of Section 8 does not

explicitly require giving notice to exercise her option of terminating the license, thus never

triggering this impossible scenario. However, it would be dubious to claim that one could nullify

the license, thereby opening up the licensee to copyright infringement, without so much as giving

notice or a reason why. Indeed, courts may require notice of a breach or violation before

termination can occur if the parties to the license agreement are to deal in good faith.

Interpretation #2 – No reasonable notice means cure within a reasonable period of time;

first time notice would trigger window again

Another interpretation resolves some of the problems of the first interpretation, but would

require reading in terms that are not expressly in the GPL. However, a court may find that the

function of notice is to notify the violator that a violation has occurred. Although Section 8 of

the GPL expressly states that the violator must receive notice “from that copyright holder,” the 98 GPLv3 §8 (“reinstated (a) provisionally, unless and until the copyright holder explicitly and finally

terminates your license”).99 Id.

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effect of receiving such notice would be moot since the violator already knows of his violation.

If the licensee discovering that he is in violation of the GPL for the work in question, a court

could find this functionally tantamount to the receipt of notice, thereby triggering the 30 day cure

period. Indeed, such a reading may comport with the Software Freedom Law Center’s FAQ100

on the termination section of the GPL, where it states: “GPLv3 is more lenient. . . . You are

eligible for automatic reinstatement when: you receive, from a copyright holder, your first-ever

contact regarding a GPL violation, and you correct that violation within thirty days of receipt of

copyright holder’s notice.” One could argue that given the SFLC’s FAQ, the intent of the

provision should inform the interpretation. Thus, the purpose of notice is fulfilled once the

violator discovers that he is in violation of one or more of the GPL’s terms, and therefore, the

cure window should begin at that time. However, interpreting the notice requirement functionally

rather than literally would stand in direct contention with the language requiring receipt of notice

from the copyright holder.

Although this interpretation is by no means assured, it would help align the incentives of

the violator with that of the licensor. Instead of encouraging furtiveness in remedying the

violation, an implicit cure window of 30 days would incentivize the violator to hastily correct the

remedy in order to restore the license rights. The implicit window would eliminate the

temptation to hide the violation, since the window would be guaranteed regardless of whether the

copyright holder decided to give notice or not. However, this interpretation still fails to perfectly

align incentives. Even under the interpretation that equates the violator discovering his violation

to the receipt of notice, incentives exist to simply turn a blind eye to software quality control. By

failing to monitor possible GPL violations, the violator could essentially prolong both the

violating use and the subsequent cure period when the violation is uncovered.

100 See supra at 96.

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Implications

As was described above, both interpretations are problematic for different reasons.

Interpretation #1 adheres most closely to the text, but introduces gamesmanship and encourages

impropriety between the parties. Interpretation #2 eliminates some of those perverse incentives,

but requires a very broad reading of the text. It also bases the behavior of the ambiguity on

extrinsic evidence and intent of the drafter, who may or may not share the same intent with the

actual copyright holder/licensor.101 Finally, interpretation #2 also leaves open the question of

what happens in the case that cure is not possible within 30 days. This ambiguity is explored

below.

Ambiguity – Subsequent Receipt of Notice

Also related to the ambiguity of what happens when no notice is received is the issue of

receiving notice multiple times. This scenario arises where ill-intentioned licensor could try to

artificially shorten the cure window by giving notice to the violator a second time. How should a

court determine the effect of a second receipt of notice?

Interpretation #1 – Second receipt of notice truncates cure period

This interpretation is unlikely to gain much traction because it lacks textual or intent-

based support. While the GPLv3 does not address receiving notice a second time, there is no

real compelling reason to believe that the cure period would expire upon the second receipt of

notice. Allowing a licensor to do otherwise would also place inordinate power in the licensor’s

hands, while conditioning the possibility of cure solely on the licensor’s consent. This would

effectively read out the utility of the cure period.

101 See supra p. 9-10.

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Interpretation #2 – Second receipt of notice is ineffective until after cure period expires

A better interpretation would be to interpret a second receipt of notice as irrelevant for

purposes of establishing the status of the license. This reading would have textual linkage as

well; because the text is silent as to what occurs upon a second receipt of notice, one can

presume that nothing happens. Moreover, this reading preserves the function of the cure

window. However, this interpretation is deficient in that it does not explain whether subsequent

notice after the cure window expires could create another cure window. Perhaps the violator is

working diligently on curing the violation, but his remedy is incomplete at the time the cure

window expires. This interpretation could effectively take the power out of the licensor’s hands

by forcing termination of the rights to the GPL-licensed source code in contravention with the

will of both the licensor and licensee. This dilemma is explored more in the next ambiguity.

Implications

Interpretation #2 rejects truncation of the cure window for a non-effect upon a second

receipt of notice. However, the text of the termination section only contemplates cure within the

30 day window. It is thus not even clear what purpose secondary notice would serve after the 30

days expired.

Ambiguity – Status of License After Cure Period Expires

This ambiguity arises in the case where a violator receives his first notice from the

copyright holder, but fails to cure the violation within 30 days. This may arise in practice where

remedying the violation may be technically complex or unanticipated, leaving the violator ill-

prepared, or where the violators decides not to cure the violation. Because cure within 30 days

offers permanent reinstatement, there is a question of what behavior should occur in cases where

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either the violator does not work towards a cure, or where the violator is working diligently

towards a cure, but fails to meet the 30 day time window.

Interpretation #1 – License is permanently terminated

The textual interpretation is that the license remains in a terminated state after the cure

period expires.102 Because a qualifying violation triggers an automatic termination of rights,

there is no license extant from the time of the violation. Only by receiving notice, then curing

within a 30 day period, can a violator receive permanent reinstatement of the license.103 Because

the GPL is silent with respect to what happens if no cure is achieved within that time frame, a

court may assume that nothing would change with respect to the status of the rights. In other

words, the violator had no rights at the start of the cure period; he has none at the end.

While this reading of the text may sound reasonable, it also requires making problematic

assumption that the rights which were terminated automatically remain permanently terminated.

Since the 30 day cure period has run, there is no subsequent opportunity for cure. This leads to a

counterintuitive result: The penalties on first time violators are stricter than penalties to second

time violators (and greater), since the option of whether to “explicitly and finally [terminate]” the

license is extended to copyright holders for subsequent violators.104 The textual evidence seems

to suggest such an interpretation is untenable. The word “finally” suggests that the rights that are

automatically terminated at the beginning of the violation have the ability to be reinstated;

indeed, this comports with the whole purpose of Section 8 of the GPL. Accordingly, because

there is no mention of one’s license being “finally” or “explicitly” terminated at the end of the

cure period, the text as drafted must refer to some other non-permanent form of termination.

102 See GPLv3 §8.103 Id. See supra note 94.104 See GPLv3 §8 (“[The license is reinstated] provisionally, unless and until the copyright holder explicitly

and finally terminates your license”).

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Moreover, the provision in which the cure period is contemplated provides for permanent

reinstatement. Given the severity of final termination, a stratified approach to penalties for

failing to meet the cure period may be favorable. Furthermore, a court may find that a

permanent termination intepretation is both arbitrary in execution (30.1 days means permanent

termination whereas cure within 30 days means permanent reinstatement), and fails to account

for diligence in resolving GPL violations.

Interpretation #2 – Provisional reinstatement is still possible at the copyright holder’s

option to terminate

An alternative interpretation is that rather than binding the copyright holder to final

termination of the license after the 30 day cure window lapses, there is still a possibility for

provisional reinstatement at the copyright holder’s consent. Under this interpretation, once the

copyright holder does succeed in curing the violation, the copyright holder would still have the

option to “explicitly and finally” terminate the license.105 An important distinction with the

above interpretation is that this reading allows the copyright holder to punish violators who

either fail to make a good faith effort to cure the violation, while incentivizing well-intentioned

violators to work directly with the copyright holder.

To the former point on punishment, if a violator fails to make a good faith effort to cure

the violation, then the copyright holder does not need to extend the cure period, or could

permanently terminate the license. This reading comports partly to the text, which requires a

“cessation of all violation” prior to the provisional reinstatement taking place.106 If a violator

was working diligently towards curing the violation but ran just over the 30 day limit, this

reading would provide the copyright holder with the option to reinstate the license provisionally

105 GPLv3 §8.106 Id.

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for 60 days. This grants the copyright holder the greatest flexibility, especially in cases where

the violation may have been unintentional and complex to remedy. This interpretation would

also further the intent of the GPL drafters107 by encouraging the violator to work closely with the

copyright holder to remedy the violation to her satisfaction. Because the copyright holder holds

the ultimate power to “finally” terminate the license, the copyright holder essentially has veto

power of the proposed remedy. By working with the copyright holder, the violator would

increase the likelihood that his cure would pass the 60 day “trial” period and be result in

permanent reinstatement.

A problem with reading in a diligence exception, aside from going beyond the text, is that

“explicit and final” termination still requires cessation of all violation under the GPL.108 Because

the option to do so is expressly tied to the 60 day period after cessation of all violations, the

copyright holder’s ability to finally terminate the license would be dependent on the violator

actually working towards a cure.109 The violator may know that at this point the copyright holder

intends to finally terminate his license, providing him with little incentive to continue working

towards the cure. The parties would end up deadlocked; note, however, that in a practical sense,

this would operate as a final termination to the violator. This deadlock could be prevented by

providing the copyright holder with the option to finally terminate the license if the violator has

not worked diligently enough to cure a GPL violation.

Implications

Again, there are conflicting interests and issues with both interpretations. Interpretation

#1 sacrifices flexibility on the part of the copyright holder for fidelity to the text. Interpretation

107 See supra note 67.108 See GPLv3 §8 (“[The license is reinstated] permanently, if the copyright holder fails to notify you of the

violation by some reasonable means prior to 60 days after the cessation” (emphasis added)).109 Id.

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#2 maximizes the flexibility of both the copyright holder and licensee to react to violations, but

requires reading in provisions that do not exist in the text. Despite this, it seems that

interpretation #2 would work better in practice. Instead of locking both parties into automatic

permanent termination, both parties would have the option to work together to reach an

acceptable remedy. This preservation of freedom between parties would harmonize well with

the intention of the drafters of the GPL, which is not to spread “fear, uncertainty, and doubt” but

free and open use of software.110 The problem of deadlock and final termination could easily be

resolved by granting the option to the copyright holder to finally and explicitly terminate the

license beginning on the 31st day (i.e. right after the cure window closes), and could be subject to

a reasonable efforts exception.

PART III: CONCLUDING REMARKS

Suggested Improvements

Scope of Violation

The ambiguity relating to when the Termination provision is triggered could be mitigated

by explicitly stating what actions do and do not count towards termination in Section 8. While

the GPLv3 as drafted has fairly good clarity here, some licensees may feel it unjust to have their

licenses terminated in the event they did something minor or unrelated to propagation or

modification. For this reason, it would also help to draw distinctions between material and

immaterial breach and their respective remedies. The motivation in doing so would be to fine-

tune the Termination provision of the GPLv3 from a blunt tool, termination or no termination, to

a more stratified approach to violations. Unambiguously stating what does and does not qualify

110 See Eben Moglen, Enforcing the GPL, available at http://www.gnu.org/philosophy/enforcing-gpl.html (Sept. 10, 2001); see also infra note 11 and accompanying text.

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for termination would also gives licensees more certainty with respect to what actions they can

take. Conversely, maintaining the current approach exemplifies the strictness of the GPL’s terms

and motivates licensees to take greater precautions before acting.

Liability During Cure Period

In the intermediary period between the automatic termination of rights and when the

license is either provisionally or permanently reinstated, the GPL should clearly articulate

whether and what kind of liability exists. This would include providing metrics for calculating

damages, such as a measure of how long the violation occurred, if there was malice intent to

violate the GPL’s terms, the magnitude of the violation’s effects, and the severity of the

violation. One incentive not to impose liability is that it may help curry favor in the FOSS

community, by informing potential participants that violations will not be met with the

uncertainty of hefty damages. Knowing that one would have a “grace period” with which to cure

unforeseen violations could go a long way towards alleviating fears. On the other hand,

imposing liability during this period helps to incentivize speedy resolutions to violations, as the

violator will not want to continue accruing damages.

No Cessation but No Notice

The strategy here is to align the incentives of the violator to work with the copyright

holder to remedy the violation. This could be done by giving the violator a fixed time period

(e.g. 30 days) after he learns of the violation with which to notify the licensor. This then could

serve as notice for the licensee for purposes of establishing the start of the cure period. This

would grant the licensor greater certainty in knowing that his license could be permanently

reinstated if he is able to cure the violation within 30 days, instead of facing the uncertainty of

the licensor’s option to finally terminate the license after cessation of the violation occurs.

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Second Receipt of Notice

The termination language should state that second notice can only be given by the

licensor after the cure window ends. However, the notice should also not be completely

ineffectual. In the case that the violator has failed to cure the violation within the 30 day period,

second notice ought to provide some function that imposes additional penalty on the violator.

This is discussed in conjunction with the status of the license in the next subsection.

Status of License after Cure Period Expires

This ambiguity could be clarified by granting the licensor an option after the 30 day cure

window to either “finally and explicitly” terminate the license or extend the cure window for

another fixed amount of days. Because a violator may be working diligently towards curing a

violation, but lacks either the technical capability or manpower to complete the task within the

30 day time limit, allowing the licensor greater flexibility could prove more fair to the licensor.

Furthermore, it empowers the licensor to terminate the license finally in the case that the violator

is unrepentant.

Conclusion

The termination provision section as drafted contains areas of ambiguity and misaligned

incentives. Businesses and open source licensees want clarity in order to accurately gauge the

risk of using, modifying, and propagating GPL-licensed source code. By taking the steps

suggested in this section to reduce ambiguity, the drafters of the GPL can go a long way towards

establishing the certainty that would encourage more parties to join in the FOSS initiative.

Finally, it is worth noting that there are two approaches towards redrafting: enforcing strict rules

or allowing downstream licensors greater flexibility in establishing punishments. In particular, a

“softer” approach may be more beneficial in the long run. While the GPL has already

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established its teeth by securing many settlements over the course of its life, parties may feel

more at ease if they have the assurance that unintentional violations that are cured rapidly and in

good faith would not subject them to liability. The suggested approach can be summed up aptly

in the adage: “you catch more flies with honey than with vinegar.”

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