Subject: Re: Why the GPL is invalid.
From: BSD Protector <>
Date: Thu, 12 Feb 2004 18:06:25 -0800 (PST)

--- daniel wallace wrote:

> See the Supreme Court citation "[i]t goes without
saying that a contract cannot bind a nonparty."?

And that is precisely the reason why any license,
including for instance, the BSD license, would be
non-binding as a contract to anyone other than whoever
entered the contract. It is not possible to demand in
such a contract any condition that might require
binding of all future third parties. They are not
privy to the contract, why would they obey any of its

When original BSD license asserts that you have to
advertise, it is completely applicable to anyone,
anywhere that ever attempts to distribute the software
that contains the original code or the derivatives
thereof. It is not important if you received the work
and permission to distribute from UCB or someone else
that prepared a derivative and released under a
different license. The demand is made in a
self-perpetuating manner and the text of the license
is clear - it is a condition that must be obeyed by
anyone, even the third party receipients that can
distribute, as specified by some new license (in case
new license doesn't permit distribution, copyright
isn't involved at all).

Sidenote: the fact that UCB removed this particular
clause retroactively is not relevant here. There is
plenty of other software and copyright holders that
used similar licenses and never removed the clause.
Example: Caldera's release of 32V Unix.

And yet, most licenses do exactly that. So, what
exactly is this "new right against the world" that
enables this to happen? It is the good old "copyright
against the world", no more, no less.

Why is it that someone that wants to do something with
a copyrighted work must have all required permissions?
Simply because lack of any of those is copyright
infringement. Copyright is the right against the world
- anyone without permission is in trouble. Don't meet
conditions, you have no permission - copyright

Now look at this again:

"In ProCD, for example, the court found that the
mutual assent and consideration required by a contract
claim render that claim qualitatively different from 
copyright infringement."

Exactly, QUALITATIVELY DIFFERENT from copyright
infringement. Meaning, they are two distinct concepts.

I urge you to read the section 114 (and other sections
of Copyright Act) again. The Act understands and
explicity recognizes the concept of multiple
unilateral permissions given by owners of copyright
and without any mutual agreement between them.

GPL asserts:

6. Each time you redistribute the Program (or any work
based on the Program), the recipient automatically
receives a license from the original licensor to copy,
distribute or modify the Program subject to these
terms and conditions. You may not impose any further
restrictions on the recipients' exercise of the rights
granted herein. You are not responsible for enforcing
compliance by third parties to this License.

So, your imaginary C did in fact receive a permission
from A, subject to the GPL conditions. C did in fact
receive permission from B, subject to the GPL

There is no ambiguity in what that means, what the Act
recognises as "licensing" and "conditions" and
"multiple unilateral permissions". No contract between
anyone is required to enforce any of those.

I repeat, if in fact the Act required another piece of
legislation, especially state level, in order to
enforce "licensing under conditions" (which in your
mind reads: contract), it would be preempted by
itself. There is nothing stopping anyone from ADDING a
contract to a copyright license as long as that
contract isn't attempting to regulate one of the
topics covered exclusively by the Act.

This is how Microsoft EULA and other similar documents
work. Is there a right to "use of copyrigted work on a
single computer" right enumerated in section 106? No.
Or a right to "use the copyrighted work on a dual 1
GHz Pentium 4 system"? No. That's why you can bind
that other person through a contract to such terms.
How do you do that? By conditioning distribution
(copyright matter, regulated by the Act) on acceptance
of a contract. This contract is not binding to any
third party strangers, distributions terms are.

All answers to your misunderstanding are in the quotes
you submitted. There is a qualitative difference
between copyright and contracts.

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