Subject: Re: Why the GPL is invalid.
From: jcowan@reutershealth.com
Date: Thu, 12 Feb 2004 17:12:44 -0500

daniel wallace scripsit:

*sigh*

> In the case of the GPL an original "preexisting" author A
> prepares (authorizes) modification of his "preexisting"

"Preparing" is what B does, not what A does.

> There was a "meeting of the minds" so Author A and
> Author B are in "privity"... they are not strangers to
> each other (in the legal sense).

The GPL is not a contract, inter alia, because there is no meeting of
the minds; indeed, A may be utterly unaware of B's existence.

> Author B now has all the permissions required to copy
> (distribute) the derivative work and he does so. This is a
> perfectly valid contract except for one problem... it
> requires modifying Author B to distribute the derivative
> work with the condition added that:

It's not a contract, and contracts don't "modify" the contracting
parties -- unless, indeed, they are contracts for plastic surgery.

> Author A says to Author C you're infringing on my
> copyrights in my original "preexisting work. You must live
> up to the terms of the GPL license which I originally
> used to grant permission... but unfortunately Author A and
> Author C are, in the legal sense, total strangers.

True if misstated:  A can't sue for infringement of his
copyright in this case.  But B can sue for infringement of
her copyright.

> This citation alone implies that as a contract the GPL
> contains an invalid term. 

That would be a sound argument if the GPL were a contract,
perhaps, but it isn't a contract.

> This is what confounds analysis of the GPL. It's a
> perfectly innocent looking contract 

It's not a contract.

> Since the GPL contains a term that purports to abolish
> "privity" requirements for third parties, it may be ruled
> invalid as a contract before the court ever proceeds to
> the stage of examination under section 301 preemption.

It doesn't purport to be a contract; it purports to be a bare license
with conditions.  No conditions met, no license; no license, no right to
make derivative works.  Simple.  As simple as conditional permission to
enter onto A's land: violate the condition, the permission goes bye-bye,
and you're a trespasser.

IANAL (which is not a confession of ignorance) and TINLA (luckily for me).

-- 
John Cowan  jcowan@reutershealth.com  www.reutershealth.com  www.ccil.org/~cowan
"You cannot enter here.  Go back to the abyss prepared for you!  Go back!
Fall into the nothingness that awaits you and your Master.  Go!" --Gandalf
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