On Sun, May 18, 2003 at 06:16:10PM -0600, Hans Forbrich wrote:
Peter B Van Campen wrote:
Dear Graham and Listees,
In law 'consideration' is what is exchanged. Most often it is money. The relavent aspect of the GPL is that there is nothing exchanged in the other direction. We all know that we get the code as the licensees, but what does the Licensor get? This is the key aspect of the argument. The law believes that for a transaction to have legally occured there must have been a two-way exchange between the parties. Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract. This aspect of the GPL has never been tested in a court. This leaves a doubt as to the enforceability of the GPL. If a deep pocketed corp contests the GPL in court the outcome is very much in doubt, if only because the GPL has 'shallow pockets' and may well loose by default. Sad but true.
But isn't the exchange the following:
party a) permission to use and modify the code; party b) recognition that the code has been developed/released under the GPL license and the inclusion of the license in all further redistribution
IMHO, the regognition is an intellectual aspect and the inclusion is a physical aspect (or at least as physical as software can get).
To further Hans' points above, in American common law (based mainly on English common law) a contract must have an exchange of "consideration" where the consideration is usually defined as money or trade goods, but it is not limited to those things. Any "thing" tangible or not which is a benefit to the recipient can be "consideration". Exceptions to this are items specifically not legal such as prohibited drugs or the ownership of human beings. A tangible benefit to the owner of a body of GPL code would be the addition of modifications to the code which either fix bugs in the code, or improve the performance or add features to the code. Using these items as the promised future "consideration" to the code's owner and you improve the standing of the GPL as an enforceable contract. (But this still leaves the issue of defining "offer" and acceptance" in this context. Two of the other requirements for a contract to be valid. Other legal system may have other requirements) IANAL, FWIW.
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