At 02:12 AM 5/17/03, John Pettigrew wrote:
In a previous message, Peter B Van Campen wrote:
If two parties enter into an agreement, the terms of which are written down and signed, then the agreement is only in force until one party contests the agreements legality.
No, the agreement is in force until a judge decides that it is not valid. That is, the point at which it stops being enforceable is at the point of judgement, not at the point of contention (actually, of course, once it is judged invalid, it was *never* enforceable - the judgement is restrospective). If the person contesting its legality loses, they will be liable for any and all penalties applicable for breaking that agreement, even if they did so while it was in contention.
Until a court issues a ruling the agreement is simply a "Gentelmans Bargain" and no govt agency is going to enforce it.
Again, no - until the court rules, the agreement retains all its force of law. No prudent person would violate a contract while it was in contention unless they were *very* sure that they would win the case.
And no "govt agency" enforces any contract, unless you include the courts in that - they are, again, the venue where contract violators are brought to book. Contracts are legal, not federal, instruments. So, the GPL needs no government involvement at all to enforce (unless the govt is a party to it). Any enforcement would be carried out through the courts.
Legal scholars have questioned the enforcablity of the GPL
Not quite - what is at issue is not its enforceability but its validity. If it is legally valid, it can and will be enforced. If it is not valid, enforcement is a non-issue.
The most troubling aspect of the GPL? There is no 'consideration' exchanged as part of the transaction.
Depends on the juridisction involved (countries vary widely in their interpretation of such things). For example, in the UK (AIUI), a "free gift" can still be judged as goods under the terms of the Sales of Goods Act - that is, it must be of merchantable quality and fit for the purpose.
John -- John Pettigrew Headstrong Games
Actually, when you think about it, the GPL ruling would have to go a lot higher than just the USA's Appellate Court, I would think it would have at least go to the UN Courts even for a basic single judge 'maybe worth hearing by a full bench' ruling, and the ruling I believe would take at least six years on the flow lines of their present case calender. Also remembering that Linux is a World Wide Operating System (as many peoples across all continents and races have contributed and support code using the GPL), I believe that therefore under law, no single country has the authority to disregard the GPL as it is at presently recognized internationally by defacto and by all as legal. But even then (with a negative UN Ruling), as Linux exists and has been spread into countries that don't recognize the UN's legal domain it would have also to be individually processed through the courts to completion in each of those other legal domains as well, to get world recognition as an action of the GPL being ruled illegal. And this means EVERY domain would have to rule it illegal! I wonder if SCO really has thought this out! To bring a court case against the GPL into every legal domain on the planet would, I would have thought, bankrupt a small country, let alone a company of their size. I could be wrong of course as I don't have that much legal training. --------------------------------------- After re-reading this my only thought is pew, i'm glad it's not me involved (on either side). I also believe that it would be SCO's responsability to prove the GPL is illegal, not the Linux community to prove it is legal! my two cents worth scsijon