Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review
From: Rick Moen <rick@linuxmafia.com>
Date: Thu, 2 Aug 2007 15:07:41 -0700

Quoting Lawrence Rosen (lrosen@rosenlaw.com):
> Rick Moen wrote:
> > Do you really think you'd find any judge willing to order that sort of
> > specific performance as a equitable remedy, when lesser remedies
> > involving injunctive relief and (if applicable) damages would more than
> > suffice and are prescribed by statute?  You're the lawyer, my good sir,
> > but I have my doubts.
> 
> If the GPL is enforced on contract grounds, I'd seek specific performance,
> which is a contract remedy.

Makes sense -- but, depending of course on the facts of the case, I
would think most defendants would assert mistake and resulting lack of
offer/acceptance, which defence if credible would reduce the case to one
of simple copyright infringement again.  Also, my dusty old notes on
contract law say that specific performance is available as a remedy for
breach of contract _only_ if the usual remedy in law (i.e., damages) is
"inadequate", e.g., where it involves unique real estate properties.
In software cases, remedies in law strike me as generally perfectly
adequate in the legal sense of that term -- and customary.

Also, my notes say specific performance is available only if the
contract provision to be enforced against the tort-feasing party 
is "just and reasonable".  E.g., requiring Oracle Corporation to
re-release Oracle RDBMS under GPLv2 just because the company included a
third-party GPL library wouldn't fly, on those grounds, especially when
(again) damages are an alternative and traditional remedy.

Also per my notes, courts grant specific performance decrees in
contract cases only if the contract is "sufficiently certain to make the
precise act which is to be done clearly ascertainable".  My own estimate 
is that GPLv[23] wouldn't qualify unless amended to say "You agree that 
you will issue any derivatives of the covered work under the same terms
as the covered work itself, even if it's a prorpietary codebase for
which you charge ghastly amounts of money, and yes we do mean you, Mr.
Ellison."

> I'd argue both contract and license, even though the FSF/SFLC pretends the
> GPL can't be a contract.

Quibble:  I may be misremembering, but my recolleciton is that Moglen et
alii basically say it _needn't_ be read as a contract.

-- 
Cheers,                    English is essentially Anglo-Saxon with 
Rick Moen                  all the cool bits taken out. 
rick@linuxmafia.com        --Thomas Leigh, http://ccil.org/~cowan/essential.html