product, requiring it to be licensed under the GPL as well if it is distributed to others.
Yet just as the law celebrates “those wise restraints that make us free,”[1] the GPL enhances far more freedom than it limits. The copyleft condition feeds the commons. It ensures that FOSS works remain free even as they evolve and protects earlier programmers against later programmers’ proprietary appropriation of their work.[2] Because the copyleft condition applies only to software derived from GPL-licensed code, it is sometimes labeled a “reciprocity” provision. In other words, the cost of reusing GPL-licensed code in one’s own work is that one must either offer that work to all under the GPL, or offer it to no one.[3]
Although the GPL also includes what is labeled a “termination” provision,[4] it is important not to confuse this clause with the issue under consideration herein. The GPL provides, in essence, that if a licensee fails to honor the conditions stated in the license (and fails thereafter to cure her default), that licensee may not thereafter rely on the GPL as a defense to the original licensor’s claim of copyright infringement. In the language of the license, the rights of a defaulting user are said to “terminate.”[5] Stated differently, a user may, by her conduct, forfeit the rights the GPL grants. This is a different issue from the question that this Article considers, namely, whether the Copyright Act permits unilateral termination of open content licenses by the author (or the author’s heirs) irrespective of any breach by the licensee.
Unless the licensee forfeits her rights by breaching a condition of the GPL, however, the license is expressly declared to be perpetual: “All rights granted under this License are granted for the term of copyright on the Pro-
- ↑ See, e.g., Charles Fried, The Nature and Importance of Liberty, 29 Harv. J.L. & Pub. Pol’y 3, 5–6 (2005) (quoting language traditionally used at Harvard Law School s graduation ceremony).
- ↑ See Benkler, supra note 11, at 63–65; Weber, supra note 9, at 85 (“Open source intellectual property aims at creating a social structure that expands, not restricts, the commons” and “promises to ratchet up the process over time as a commons of raw materials grows”); Eric E. Johnson, Rethinking Sharing Licenses for the Entertainment Media, 26 Cardozo Arts & Ent. L.J. 391, 404–05 (2008). See generally Stallman, supra note 47.
- ↑ See, e.g., Ronald J. Mann, Commercializing Open Source Software: Do Property Rights Still Matter?, 20 Harv. J.L. & Tech. 1, 16 (2006); Christian H. Nadan, Open Source Licensing: Virus or Virtue?, 10 Tex. Intell. Prop. L.J. 349, 359 (2002) (“requiring that any derivative works of GPL code also be covered by the GPL seems reasonable, since but for the GPL license, the user would have no rights to create the derivative works in the first place”); Tsai, supra note 65, at 551.
- ↑ GPLv3, supra note 53, § 8 (“Any attempt . . . to propagate or modify” a GPL-licensed work except as expressly provided under the GPL “is void, and will automatically terminate your rights under this License”); see also GPLv1, supra note 17, § 4; GPLv2, supra note 52, § 4.
- ↑ 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, 352 n.127 (2009) (“the best reading of this provision is that it is simply a garden variety termination provision, providing that in the event the licensee breaches the license contract, the licensee has no further rights to exercise the rights granted in the license grant provisions”); Tsai, supra note 65, at 578 (explaining that GPLv3 introduced new opportunities for defaulting users to avoid termination by curing default).
