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Re: IBM's interpretation of the GNU GPL contract

From: rjack
Subject: Re: IBM's interpretation of the GNU GPL contract
Date: Thu, 23 Nov 2006 16:26:00 -0500
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David Kastrup wrote:

rjack <> writes:

IBM submits on p23:

"Section 2 grants a licensee such as SCO the right to create and
distribute derivative works . . . –-- provided that the derived work
“as a whole” (which in this case included the Linux Kernel) must be
licensed as a whole at no charge to all third parties under the terms
of this License.(Ex. 128 § 2(b) . . .)"

In other words one of the *original* license (contract) terms is to
*again* license (contract) with “all third parties” under the terms of
the GPL license (contract).

This is a contract between SCO and IBM agreeing to again license the
created derivative work among SCO, IBM and “all third parties” (who
choose to accept the GPL offer).

Unfortunately (for the GPL) one “essential term” of any contract is
the specific identity of the contracting parties. “All third parties”
describes a potentially infinite number of unagreed upon parties.

Any accepting “third party” must also agree to license his [as yet]
unagreed upon “modifications” (which serves as an “essential term” of
consideration from the potential offeree).

So now we have an original contractual obligation to form a second
contract with unspecified parties for an unspecified consideration.

"—[A] contract to make a contract is enforceable only where all
material terms have been agreed upon. 1 Corbin, Contracts, § 2.8, at
131, 133-34 (Perillo ed. 1993)." Prisma Zona Exploratoria de Puerto
Rico, Inc. v. Calderón, 310 F.3d 1 (1st Cir. 2002).

"Under Michigan law, "[t]o be enforceable, a contract to enter into
a future contract must specify all its material and essential terms and
leave none to be agreed upon as the result of future negotiations."
Socony-Vacuum Oil Co., Inc. v. Waldo, 286 N.W. 630, 632 (Mich. 1939)”

"‘If the document or contract that the parties agree to make is to
contain any material term that is not already agreed on, no contract
has yet been made; and the so called "contract to make a contract" is
not a contract at all.’" Hansen v. Catsman, 123 N.W.2d 265, 266
(Mich. 1963).

“To constitute a valid contract, the parties must assent to the same
thing in the same sense, and their minds must meet as to all the
terms. If any portion of the proposed terms is not settled, or no mode
agreed on by which they may be settled, there is no agreement. Gregory
v. Perdue, Inc., 47 N.C. App. 655, 657, 267 S.E.2d 584, 586
(1980). . . A "'contract to make a contract'" is not an enforceable
agreement. Northington v. Michelotti, 121 N.C. App. 180, 184, 464
S.E.2d 711, 714 (1995)(quoting 1 Joseph M. Perillo, Corbin on
Contracts, §2.8(a)(revised edition 1993))." Wilkerson v. Carriage Park
Development Corp., 130  NC App 475 (08/04/1998 97-1387)

All of this is correct: there is no contractual obligation unless the
licensee agrees to make use of the license offered to him.  He can, at
his whim, decide whether he wants to make use of the license.  When he
does, he enters into contractual obligations.

> All of this is correct: there is no contractual obligation unless the
> licensee agrees to make use of the license offered to him.

Presumably there are some who make use of the GPL license since Linux contains millions of lines of code from hundreds of authors.

Any GPL source code contributor who is unhappy with some vendor of Linux such as Novell Inc. (because of their patent covenant with Microsoft) cannot sue to stop Novell from *distributing* the Linux code due to breach of contract (i.e. the patent provisions) -- the GPL is an unenforcable contract.

A GPL source code contributor can sue only on a copyright infringement theory by claiming the *scope* of any copyright grants under the GPL (compare and contrast with 'contract terms') have been exceeded.

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