Subject: Re: JBoss aquired by Red Hat
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Sat, 29 Apr 2006 21:23:17 +0900

>>>>> "Ben" == Ben Tilly <btilly@gmail.com> writes:

    Ben> On 4/28/06, Lawrence Rosen <lrosen@rosenlaw.com> wrote:

    >> This software is licensed under the GPL.  Click *HERE* to
    >> assent to the GPL and download the software.

    >> Now the GPL is a contract.

    Ben> This would render section 5 false, but let's leave that
    Ben> alone.

I'm not sure what Larry's upset about, but AFAICS section 5 doesn't
prevent the GPL from being a contract, if the user agrees to it as a
contract.  The FSF has strategic reasons for avoiding use of the GPL
as a contract (see the discussions of the OSL on the GNU licenses
page), but I don't see anything that explicitly says "this is not a
contract."

I'm not sure what the court would do with the factive "You have not
signed it" if presented with a copy of the GPL signed by both the
author and the user, but it seems possible to me that it would just
ignore it.

    Ben> What consideration does the author get?

Not a problem.  You charge him "good and valuable consideration of one
dollar", like the one the FSF has never paid up for my rights to my
contributions to XEmacs.  Or maybe you charge him $1,000,000.  You can
always do that if you're the author; the GPL only restrict 3rd parties
from doing the same.  (Remember, the licensor of a GPLed work is
always the copyright holder, never anybody else.)

    Ben> The GPL can say anything it wants.  But if it defines
    Ben> distribution, and its definition of distribution did not
    Ben> match what is accepted in copyright law, then the reasoning
    Ben> in section 5 of the GPL fails to work, and people need not
    Ben> accept the license to do things that the license tries to
    Ben> regulate.

I don't think this is a problem.  Unless you try to define
"distribution" to involve something that isn't a copy or derivative or
compilation involving your work, you're fine because all rights are
reserved.  "Distribution" doesn't define the author's rights; it
simply is a convenient collection of activities that an author might
wish to regulate in the same way.  IANAL, etc, of course.

-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory