--- daniel wallace wrote: > See the Supreme Court citation "[i]t goes without saying that a contract cannot bind a nonparty."?
And that is precisely the reason why any license, including for instance, the BSD license, would be non-binding as a contract to anyone other than whoever entered the contract. It is not possible to demand in such a contract any condition that might require binding of all future third parties. They are not privy to the contract, why would they obey any of its conditions? When original BSD license asserts that you have to advertise, it is completely applicable to anyone, anywhere that ever attempts to distribute the software that contains the original code or the derivatives thereof. It is not important if you received the work and permission to distribute from UCB or someone else that prepared a derivative and released under a different license. The demand is made in a self-perpetuating manner and the text of the license is clear - it is a condition that must be obeyed by anyone, even the third party receipients that can distribute, as specified by some new license (in case new license doesn't permit distribution, copyright isn't involved at all). Sidenote: the fact that UCB removed this particular clause retroactively is not relevant here. There is plenty of other software and copyright holders that used similar licenses and never removed the clause. Example: Caldera's release of 32V Unix. And yet, most licenses do exactly that. So, what exactly is this "new right against the world" that enables this to happen? It is the good old "copyright against the world", no more, no less. Why is it that someone that wants to do something with a copyrighted work must have all required permissions? Simply because lack of any of those is copyright infringement. Copyright is the right against the world - anyone without permission is in trouble. Don't meet conditions, you have no permission - copyright infringement. Now look at this again: "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." Exactly, QUALITATIVELY DIFFERENT from copyright infringement. Meaning, they are two distinct concepts. I urge you to read the section 114 (and other sections of Copyright Act) again. The Act understands and explicity recognizes the concept of multiple unilateral permissions given by owners of copyright and without any mutual agreement between them. GPL asserts: ---------------------------------- 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. ---------------------------------- So, your imaginary C did in fact receive a permission from A, subject to the GPL conditions. C did in fact receive permission from B, subject to the GPL conditions. There is no ambiguity in what that means, what the Act recognises as "licensing" and "conditions" and "multiple unilateral permissions". No contract between anyone is required to enforce any of those. I repeat, if in fact the Act required another piece of legislation, especially state level, in order to enforce "licensing under conditions" (which in your mind reads: contract), it would be preempted by itself. There is nothing stopping anyone from ADDING a contract to a copyright license as long as that contract isn't attempting to regulate one of the topics covered exclusively by the Act. This is how Microsoft EULA and other similar documents work. Is there a right to "use of copyrigted work on a single computer" right enumerated in section 106? No. Or a right to "use the copyrighted work on a dual 1 GHz Pentium 4 system"? No. That's why you can bind that other person through a contract to such terms. How do you do that? By conditioning distribution (copyright matter, regulated by the Act) on acceptance of a contract. This contract is not binding to any third party strangers, distributions terms are. All answers to your misunderstanding are in the quotes you submitted. There is a qualitative difference between copyright and contracts. __________________________________ Do you Yahoo!? Yahoo! Finance: Get your refund fast by filing online. http://taxes.yahoo.com/filing.html -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
