Standing to Sue

Not everyone who perceives a wrong is allowed to sue to correct that wrong. Parties to litigation must have a suitable stake ”a legally protectable and tangible interest ”in the outcome of a dispute. Standing to sue deals only with the question of whether the litigant is the proper party to fight the lawsuit, not whether the issue itself is justiciable.

Open source licenses often elicit passionate support in the open source community. That passion does not necessarily translate, under the law, to standing . Only parties with a well- defined legal interest in the outcome may litigate an open source license. Even open source advocacy groups such as the Free Software Foundation and Open Source Initiative don't have standing to sue to protect software freedom or to protect software under open source licenses. Nor is the public an intended beneficiary of open source licenses, despite the open source goal to serve the public interest in software freedom. A mere member of the public can't sue to enforce an open source license.

Intellectual property laws narrowly limit standing. Only the owner of a copyright or patent may sue to enforce the copyright or patent. Distributors who don't own copyrights or patents can't sue under copyright or patent law to enforce their contributors' copyrights and patents, but they do have standing to enforce the copyrights and patents embodied in their own collective or derivative works.

Since the GPL is intended by its authors to be a copyright license but not a contract, and since there is usually no attempt to seek assent by licensees to the terms of the GPL, that license presumably cannot be enforced under contract law. All the other licenses described in this book are designed to be contracts and so the parties to those licenses can sue to enforce them as contracts. The parties to a contract have standing under contract law to enforce that contract. This means that licensors and licensees can enforce their licenses that are contracts, regardless of who owns the underlying copyrights or patents.