Subject: Re: Why the GPL is invalid.
Date: Thu, 12 Feb 2004 17:12:44 -0500

daniel wallace scripsit:


> 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
"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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