Re: Help to pick a license for my free source code project

[rjack]

Rui Miguel Silva Seabra wrote:
> On Mon, Oct 15, 2007 at 11:20:20AM -0400, rjack wrote:
> > John Hasler wrote:
> > > KomsBomb writes:
> > > > 2, The source code can't be used in commercial program.  That's to say,
> > > > the source code can't be used to make any profit in both source code or
> > > > binary form.
> > > Then it isn't Free Software and so you are off-topic here.
> > Since the GPL is unenforceable under US law, GPL'd code isn't 
> > "Free Software" either. See:
> >
> > 'Professor Robert P. Merges of the Berkeley Law School noted some 
> > of the problems in his "The End of Friction? Property Rights and 
> > Contract in the 'Newtonian' World of On-Line Commerce" (12 
> > Berkeley Tech. L.J. 115), in which he describes the GPL as 
> > "informal (i.e., not legally enforceable) restrictions on digital 
> > content."'
> > http://linuxplanet.com/linuxplanet/reports/2000/1/
>
> Nice of you to *not* quote the rebuttal from Eben Moglen, on the same
> article.
>
>         If you sell someone a book she has a right to give it to whomever
>         she pleases. That's the first-sale rule. But the donee of the book
>         may not copy it and give away copies. You can enforce your copyright
>         against that donee, even though you are not in any contractual
>         privity. In the case of the GPL, no one is bound to anything in
>         particular unless she redistributes the software, modified or
>         unmodified. Because copying and redistribution, or the making of
>         derivatives, are never authorized in the absence of a license,
>         undertaking to redistribute is clear acceptance of our terms for
>         redistribution. There's nothing unorthodox about that, and no
>         barrier to enforcement."
>
> Sorry, but Eben Moglen has been in courts about the GPL, and virtually
> all cases have been settled, with the infringing party agreeing to
> comply or desist.
>
> Rui


Eben first says:

“If you sell someone a book she has a right to give it to 
whomever she pleases. That's the first-sale rule. But the donee 
of the book may not copy it and give away copies. You can enforce 
your copyright against that donee, even though you are not in any 
contractual privity. . .”

This is *true*.

Eben then further states:

“In the case of the GPL, no one is bound to anything in 
particular unless she redistributes the software, modified or 
unmodified.”

This is *not* true. No one can be bound by the GPL whether 
distribution occurs or not -- because a contract cannot bind
“all third parties” as the GPL’s sec. 2(b) purports to require. See:

“It goes without saying that a contract cannot bind a nonparty.”; 
Equal Employment Opportunity Comm’n v. Waffle House, Inc. 122 
S.Ct. 754, 764 (2002)

Who ya’ gonna’ believe. . . the United States Supreme Court
or Eben Moglen?