Subject: IBM's direction
From: dlw <danw6144@insightbb.com>
Date: Tue, 31 Aug 2004 07:45:27 -0500

I have puzzled over the strange looking (to me) description
that the IBM legal team used concerning the GPL.
 
" 27. The Linux kernel ...
The Linux developers' public agreement to apply GPL terms
expresses in a binding legal form the conscious public
covenant that defines the open-source community -- a
covenant that SCO itself supported as a Linux company for
many years."

A general definition of a "covenant" is some form of
agreement involving promises.

COVENANT, contracts. A covenant, conventio, in its most
general signification, means any kind of promise or
contract, whether it be made in writing or by parol.
--- 1 Hawkins P. C.

" The Linux developers' public agreement to apply GPL terms
expresses in a binding legal form" is the very essence of
the legal definition of a covenant or contract involving
"promises " .
 
The exact terminology isn't important . What's important is
that  "legally binding promises" are made that lead to
enforcement under common (state) law.

"Copyright is a personal property right, and it is subject
to the various state laws and regulations that govern the
ownership, inheritance, or transfer of personal property as
well as terms of contracts or conduct of business. For
information about relevant state laws, consult an attorney."
--- U.S. Copyright Office  Circular1

Next look at "conscious public covenant". This is the
equivalent of saying "deliberate public promise".  A
"charitable subscription" by each kernel contributor made
in the spirit of charity and sharing. In other words it's
just one big public charitable trust for all .

 From the GPL:  "By contrast, the GNU General Public
License is intended to guarantee your freedom to share and
change free software--to make sure the software is free for
all its users."

Restatement (Second) of Contracts
ARTICLE 90
Promise Reasonably Inducing Action or Forbearance:
(1) A promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee or
a third person and which does induce such action or
forbearance is binding if injustice can be avoided only by
enforcement of the promise. The remedy granted for breach
may be limited as justice requires.
(2) A charitable subscription or a marriage settlement is
binding under Subsection (1) without proof that the promise
induced action or forbearance.

 We see :
 (2) A charitable subscription or a marriage settlement is
binding under Subsection (1) without proof that the promise
induced action or forbearance.
 
IBM is setting the stage for using the source code in the
kernel without having to prove " that the promise induced
action or forbearance." This eliminates the need to file for
"promissory estoppel" against each individual kernel
contributor.

You have to hand it to IBM legal. When it comes to open
source licenses they know where they're going at all times.

Now if open source licenses are difficult or impossible to
implement without an "extra element" (commercial?) term
then IBM would be forced to release a commercial
distribution of their own... although I doubt that thought
ever crossed their charitable minds. They're too committed
to the GPL.

Daniel Wallace