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Re: GNU licenses

From: Merijn de Weerd
Subject: Re: GNU licenses
Date: Tue, 05 Sep 2006 14:12:28 +0200

On Tue,  5 Sep 2006 12:20:57 +0200 (CEST), "Alfred M. Szmidt"
<> said:
>    When we enter into a contract that says "you may copy, at cost of
>    $1 per copy", then we both have an obligation as a result. I have
>    to tolerate the copying, you have to pay $1 for every copy.
> Yes, but this is a copyright license, not a contract.  So contract law
> isn't relevant here.

The $1 is consideration, so that license would be a contract. 

Anyway, whether it's a bare license or a contract: the scope of the
license grant can be limited only by limits on the *acts themselves*.
For example:
- you may copy, but no changes
- you may copy 1,000 times
- you may translate into Dutch and sell in EU countries
- you may recite the text on stage
- you may put the photo on your website but not anywhere else

We were talking about payment. Payment is not a *limit on the act* it is
*in consideration of* the act. You cannot reframe consideration as a
limit on the act. 

Legally speaking "you may copy but only if you pay $1 per copy" is *the
same* as "you may copy, and you will pay me $1 per copy". 

Our resident quote-spewing troll does prove useful occasionally: he
cited GRAHAM v JAMES which is exactly on point under New York law.

The case quotes from Nimmer on Copyright:
"[i]f the [licensee's] improper conduct constitutes a breach of a
covenant undertaken by the [licensee] . . . and if such covenant
constitutes an enforcible contractual obligation, then the [licensor]
will have a cause of action for breach of contract," not copyright

The payment is a *covenant*, a promise made by the licensee. In the
GPL's case, the requirement to provide source is the covenant. 


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