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).