Subject: Re: Question regarding a new local license approach
From: Walter van Holst <walter.van.holst@gmail.com>
Date: Mon, 14 Mar 2005 23:06:05 +0100

On Mon, 14 Mar 2005 16:28:57 -0500, John Cowan <jcowan@reutershealth.com> wrote:

> The common-law-centric view of the GPL is that it is not a contract
> (liability questions aside) but a conditional grant of rights, an act of
> sovereign power by the copyright holder according to the following schema:

I am aware of that approach. Actually, I have defended such a view in
a Dutch law journal in an article regarding the validity of the GPL to
Dutch law. The reception so far among legal scholars and professional
lawyers has been along the lines of 'interesting idea, but runs into
troubles because of the limitation of liability and warranty'. I think
as far as Dutch legal minds have given a thought to the subject, the
consensus is that the GPL is a EULA which is more akin to a
shrink-wrap license than to a grant. It is more or less impossible to
set the liability question aside. The conditional grant doesn't mesh
well with the 'normal' way of legal thinking here.

> This is also a risk in common-law jurisdictions.  The doctrine of
> promissory estoppel (roughly: that if Alice has relied on the promises of
> Bob, and would suffer damages if Bob is allowed to retract them, then
> Bob will be treated as a contracting party) probably prevents people from
> changing the license on existing copies retroactively.  But if Bob gives
> proper notice that he is revoking the GPL on his software, it is pretty
> unlikely that anyone thereafter is entitled to the benefits of the GPL
> on that software.

Which essentially is the same thing as the principle of protection of
legal interests I mentioned.

Regards,

 Walter