The GPL is not a contract. It requires no consent and no privity. The author simply declares how she exercises her rights. Nobody has to agree to it.
Seth Johnson -----Original Message----- From: daniel wallace <[EMAIL PROTECTED]> Date: Thu, 12 Feb 2004 16:40:33 -0500 Subject: Why the GPL is invalid. > In the case of the GPL an original "preexisting" author A > prepares (authorizes) modification of his "preexisting" > work and grants permission to distribute his "preexisting" > work. Author B accepts these permissions granted by the > GPL and modifies the "preexisting" work. This is now a > "derivative work". > > Author A and Author B are in contractual "privity". Author > A approached Author B with a GPL license and Author B > said to Author A, "I accept the GPL and agree to its > terms." 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). > > 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: > > "b) You must cause any work that you distribute or > publish, that in whole or in part contains or is derived > from the Program or any part thereof, to be licensed as a > whole at no charge to all third parties under the terms of > this License." > > So Author B approaches Author C with a GPL license and > the derivative work created by Author A and Author B > above. Author C says to Author B, "I accept the GPL and > agree to its terms." There was a "meeting of the minds" so > Author B and Author C are in "privity"... they are not > strangers to each other (in the legal sense). > > Now Author A and Author C are *not* in privity. Author B > approached Author C. Author A and Author C are legal > strangers since there was no "meeting of the minds". > Author A is in privity with Author B and Author B is in > privity with Author C but Author A and Author C remain > legal strangers. > > Now Author C creates a derivative work and goes out and > violates the GPL by attempting to charge for a license. > > 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. > > Author A has created a marvelous new contract license for > his work that binds not only to Author B, who is in > privity with Author A, but also binds parties who are > legal strangers to Author A, such as Author C. > > Now look at: > > "In ProCD, for example, the court found that the mutual > assent and consideration required by a contract claim > render that claim qualitatively different from copyright > infringement. 86 F.3d at 1454. Consistent with Data > General's reliance on a contract element, the court in > ProCD reasoned: 'A copyright is a right against the world. > Contracts, by contrast, generally affect only their > parties; strangers may do as they please, so contracts do > not create exclusive rights.' Id. Indeed, the Supreme > Court recently noted: '[i]t goes without saying that a > contract cannot bind a nonparty.' EEOC v. Waffle House, > Inc., 534 U.S. 279, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 > (2002). This court believes that the First Circuit would > follow the reasoning of ProCD and the majority of other > courts to consider this issue." > --- Bowers v. Baystate Technologies Inc., 64 USPQ2d 1065 > (CA FC 2002) > > See the Supreme Court citation "[i]t goes without saying > that a contract cannot bind a nonparty."? > > This citation alone implies that as a contract the GPL > contains an invalid term. That term is the requirement > that your redistribute using the GPL. Were that term > binding, it would establish a new "right against the > world" by abolishing requirements of privity in contract > law. > > This is what confounds analysis of the GPL. It's a > perfectly innocent looking contract until the > redistribution term attempts to abolish the > privity requirement of contract law. > > 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. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
