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Sometimes, things that are made of legal fiction are held to operate as normal even when someone attempts to disobey them.

For example, I can browse a web site and agree to its terms, or I can not browse the web site, but it seems I can't browse the web site but not form the TOS contract, even if I am willing to accept the consequences of not having permission.

Does this same principle apply to copyright law? If a license is attached to something saying that anyone may copy it provided that they pay a fee much larger than the damages for copyright infringement, and I copy it, can the licensor declare that I agreed to the license and therefore owe the fee? Or can I say I rejected the license and am only responsible for the damages?

Or similarly, can source code that is distributed to you and contains GPL code be considered to have automatically been licensed to you under the GPL? Or is it possible to receive code that should have been but still is not actually licensed to you under the GPL, because the distributor rejected the GPL and chose to commit copyright infringement instead?

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2 Answers 2

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Whether a contract relates to copyright vs traditional property rights is a red herring.

As explained in two existing Q&As (very similar to your question, these were about whether one can chose to trespass instead of accepting a parking-lot contract, or an entrance fee):

and this Q&A about the objective rather than subjective analysis of contract formation:

, what matters is whether you've done the thing that constitutes acceptance of the contract, and whether in the circumstances, the conduct that the offeror has deemed to be acceptance is the kind of conduct that can objectively convey acceptance.

You can refuse contractual obligations by not doing the act that the offeror has said would constitute acceptance.

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  • So, can using software written by the offeror objectively convey acceptance? Does the ability of using software written by the offeror to objectively convey acceptance run for as long as the term of its copyright, or for a longer or shorter period?
    – interfect
    Jul 13, 2023 at 15:08
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is it possible to receive code that should have been but still is not actually licensed to you under the GPL

This is definitely possible, but in this scenario your question is moot.

It doesn't matter to you whether the person who provided the code to you

(a) agreed to the GPL and then violated its terms (breach of contract)

or

(b) made copies without agreeing to the GPL (infringement of copyright).

In neither case was a license under GPL offered to you. You cannot enforce the offender to offer you a license, because you are not a party to the contract requiring them to do so.

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  • Note that under the GPL v3 (but not the older v2), this is untrue. Section 10 gives the recipient a direct license from the authors, regardless of the distributor. There's nothing to enforce.
    – MSalters
    Jul 14, 2023 at 8:50
  • @MSalters: That can't be, since the authors of the GPL work don't legally have the right to grant licenses on derivative works. They can only sue the intermediate to force them to do so (or stop distributing altogether). I suspect the clause you refer to only applies to redistribution without modification.
    – Ben Voigt
    Jul 14, 2023 at 14:13
  • So it would be possible for someone to sue me for infringement of copyright and win, for conduct I would be allowed under the GPL, when they would have been obligated to license to me under the GPL, because a court would not correct their legally-performative behavior to bring it in line with their obligations.
    – interfect
    Jul 24, 2023 at 1:48
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    @interfect It's possible that the owner offered the software to the other party under a different license (sometimes called "dual licensing" or "multi licensing"). Normally under this scheme, you can pay the owner for a special non-GPL license. However, as this Answer points out, even if that weren't the case (i.e. infringement of the GPL occurred), it's up to the copyright holder to enforce the license. It's also a copyright holder's prerogative not to enforce a license if she doesn't want to (i.e. she can arbitrarily allow an instance of infringement if she wants to).
    – Brandin
    Jul 24, 2023 at 14:03
  • @BenVoigt: This does depend on the jurisdiction. The person receiving the derived work (which should have been GPLv3 licensed) is an intended beneficiary of the original license grant. This can be sufficient standing to sue.
    – MSalters
    Aug 14, 2023 at 4:10

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