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Re: When is a GPL program which runs in a web site 'conveyed'?

From: rjack
Subject: Re: When is a GPL program which runs in a web site 'conveyed'?
Date: Thu, 10 Jul 2008 09:29:31 -0400
User-agent: Thunderbird (Windows/20080421)

Hyman Rosen wrote:
David Kastrup wrote:
Terms which you have to agree to before being able to see them?

Yes, as long as you can back out after seeing them and not be forced to pay.
The court said that having terms that are not visible is routine. For
example, appliances come with limited warranties but don't make those limits visible on the outside of the package. That doesn't mean that the limits
don't apply. For another, terms are often so lengthy that there is no way
they could be displayed on a package. And for software, in many cases there
is no package at all, because it's downloaded.

Yes, as long as you can back out after seeing them and not be forced to pay.

Sigh... Hymen, the GPL is a third party donee beneficiary contract with the intended beneficiaries designated as "all third parties" (the general public). *All* consideration flows to the intended donee beneficiaries.

Those who previously modify the proffered source code are the "contracting parties". They alone provide the "offer" and the "consideration" forming the GPL contract. See:

"In addition, under contract law, a contract is supported by consideration even
if the consideration flows solely to a third party. See Mencher v. Weiss, 114
N.E.2d at 181(“[I]t is fundamental that a benefit flowing to a third person or
legal entity constitutes a sufficient consideration for the promise of
another.”); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e (1981)."
In re Asia Global Crossing, Ltd., 326 B.R. 240 (Bankr. S.D.N.Y. 2005)

1) As third party intended beneficiaries, they (the general public) offer *no* consideration to *anyone*.

2) The copyright permissions granted to "all third parties" cannot be rescinded
once the donees (the general public) detrimentally rely on those copyright
permissions. See:

"The right to rescind or modify a third party beneficiary contract, without the
assent of the beneficiary, ceases once the contract is accepted, adopted or
acted upon by the third party. The rights of the third party "vest" when he
learns of the initial contract and assents to it or materially changes his
position in justifiable reliance on it or brings suit on it."; Restatement
(Second) of Contracts § 311(3).


"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." -- John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre Trials,' December 1770

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