daniel wallace scripsit: *sigh*
> In the case of the GPL an original "preexisting" author A > prepares (authorizes) modification of his "preexisting" "Preparing" is what B does, not what A does. > There was a "meeting of the minds" so Author A and > Author B are in "privity"... they are not strangers to > each other (in the legal sense). The GPL is not a contract, inter alia, because there is no meeting of the minds; indeed, A may be utterly unaware of B's existence. > Author B now has all the permissions required to copy > (distribute) the derivative work and he does so. This is a > perfectly valid contract except for one problem... it > requires modifying Author B to distribute the derivative > work with the condition added that: It's not a contract, and contracts don't "modify" the contracting parties -- unless, indeed, they are contracts for plastic surgery. > Author A says to Author C you're infringing on my > copyrights in my original "preexisting work. You must live > up to the terms of the GPL license which I originally > used to grant permission... but unfortunately Author A and > Author C are, in the legal sense, total strangers. True if misstated: A can't sue for infringement of his copyright in this case. But B can sue for infringement of her copyright. > This citation alone implies that as a contract the GPL > contains an invalid term. That would be a sound argument if the GPL were a contract, perhaps, but it isn't a contract. > This is what confounds analysis of the GPL. It's a > perfectly innocent looking contract It's not a contract. > Since the GPL contains a term that purports to abolish > "privity" requirements for third parties, it may be ruled > invalid as a contract before the court ever proceeds to > the stage of examination under section 301 preemption. It doesn't purport to be a contract; it purports to be a bare license with conditions. No conditions met, no license; no license, no right to make derivative works. Simple. As simple as conditional permission to enter onto A's land: violate the condition, the permission goes bye-bye, and you're a trespasser. IANAL (which is not a confession of ignorance) and TINLA (luckily for me). -- John Cowan [EMAIL PROTECTED] www.reutershealth.com www.ccil.org/~cowan "You cannot enter here. Go back to the abyss prepared for you! Go back! Fall into the nothingness that awaits you and your Master. Go!" --Gandalf -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
