On Sunday 18 May 2003 7:18 pm, Peter B Van Campen wrote:
Dear Graham,
NOT A CONTRACT?
Somebody [cough] just said "Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract."
Surely your are joking? Any agreement is a contract. To be enforceable the courts require the exchange of money or other 'good and valuable' consideration.
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On Sunday 18 May 2003 12:58, Graham Murray wrote:
Peter B Van Campen
writes: Most courts have ruled that without exchange of money or other 'consideration' there is no legal contract.
<snip>
The GPL is effectively the mechanism by which the copyright owner states "I give you permission to copy and distribute the software, and to create and distribute derivative works, subject to the following conditions...." The conditions basically being that the recipient of such copies or derivative works has to be given the same permission (to modify and distribute) subject to the same conditions as you are. If you (the user of the software) do not agree with these conditions then you do not have permission from the copyright owner (who originally placed the code under GPL) to distribute copies of the either the unchanged software or derivative works.
AFAICS, a copyright is a legal right. There is no contract. No money changes hands for a copyright. If copyright is enforced under contract law, then A, who buys the book by B is contractually bound not to copy it, but C, who borrows it from A is not bound by any contract. Similarly, the GPL is effectively a conditional waiver of legal rights. It cannot be a contract, because there is no consideration changing hands. Any copyright holder trying to enforce it as a contract will come unstuck on exactly these grounds. But so what? If C violates the GPL on A's program, he has violated A's legal rights without fulfilling the conditions for the waiver, so A should sue C for copyright violation, not for breach of contract. The interesting legal points are: 1] If you have used the GPL to conditionally waive copyright, would the courts rule to support copyright breached outside the terms of the waiver? 2] If you have used the GPL to conditionally waive copyright [as SCO might well have done], can you rescind the waiver retrospectively? 3] If 2], on what grounds can you rescind? 4] If 3] is having your code included in Linux by a 3rd Party [eg IBM] and then carelessly GPLing it yourself, must existing and future Linux vendors not include derived code in future releases [or pay], must existing and future Linux vendors cease current releases with derived code [or pay], and must existing endusers cease use [or pay].