The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules)
If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.
I have access to whatever site by virtue of the site responding to my requests. In the absence of the ToS I can do whatever I want and the ToS serve to restrict that. In the absence of the GPL I can do a strict subset of what I can do when the GPL is applied.
My interpretation would be that software licenses like the GPL can really only be violated by people and companies that have the capacity to understand them. Asking a layperson to sift though some sites ToS is a burdensome expectation.
>The GPL isn't a contract (in the FSF's opinion anyways), it doesn't restrict any of your rights, it simply grants you a few more. (E.g. to make copies as long as you follow certain rules)
Didn't a court rule a few months ago that it was a contract?
Looks like one did, specifically they ruled that it was both a license and a contract, here's an article on it [0].
I think that just like the ToS example it shouldn't be counted as a contract, and I feel reasonably confident saying leggomylibro feels the same. This isn't a legal judgment on the current state of the law (which I'm not qualified to make), but a moral judgment that contracts shouldn't be able to be created like that.
> If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.
Suppose I modified and distributed GPL code in a compiled binary, without making my modifications available in source form. Suppose also I claim that I didn't notice any header comments or LICENSE.TXT files. On what grounds would the licensor claim that I had agreed to the terms of the GPL?
I'm just pointing out that people who don't think click-through TOS should be enforceable would be inconsistent to simultaneously opine that the GPL should be enforceable simply because it's packaged in text form along with the code.
The licensor can't claim that you agreed to the terms of the GPL, he can merely claim you committed copyright infringement by creating a derivative work of, and creating copies of, a copyrighted work, without permission.
If they don't make derivative code based on GPL'd code available that would be a violation provided it's software you've downloaded and installed, you have the right to it's source.
The GPL doesn't make you give the source out to everyone, look into Redhat Linux, used to be only customers got the source (and rightfully so!) eventually they made it available to everyone would such a company have been violating the GPL all that time? Doubtful... The GPL states that if they have access to the binaries, if the end-user asks for the source it must be made available in some form, even if not directly available. Hence the BMW source request from a year or so ago, and BMW wound up opening up their code to everyone afterwards, but IIRC they sent the first person to request the code a CD of some sort in compliance.
The fun twist is, say I buy GPL'd software whose code is only released to customers cause they're the only ones running the GPL'd software, I have the full rights to re-release the software to anyone and make changes as well. This allows the software to live on.
The difference between the two is that of community standards, in the community of people who click-through TOS and the corporations who publish them it is widely known that nobody reads and does not consider any requirements might apply - the behavior of everyone involved seems to indicate they don't care; among the community of people who use open source it is widely understood that the code will have some sort of license and you should check what it is - companies have open source policies about how you use licenses etc, there seems to be lots of community agreement that these things are important.
The two things are different and it is not hypocritical to note that.
If the GPL was a contract that tried to restrict your rights, then putting in header comments should not make it enforceable.