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Re: Attorney fees

From: rjack
Subject: Re: Attorney fees
Date: Wed, 16 Jul 2008 09:08:09 -0400
User-agent: Thunderbird (Windows/20080421)

Hyman Rosen wrote:
rjack wrote:
A court would agree to that because of a doctrine under U.S. common
law known as promissory estoppal:

What in the world are you talking about? Promissory estoppel
applies when someone is induced to action because of a promise
made, and then the one who made the promise refuses to honor it.

I don't know where you you found the "refuses to honor it" as the exclusive
reason to invoke promiisory estoppel.

Here is the 1981 update to The Restatement (Second) of Contracts):
"§ 90. Promise Reasonably Inducing Action or Forbearance

1. A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. 2. A charitable subscription or a marriage settlement is binding under Subsection (1) without proof that the promise induced action or forbearance."

A promise to give money to a charity is a classic example of promissory estoppel under § 90 (2) which will be enforced by a court when the charity makes expenditures or incurs obligations in reliance upon the promise. The promisor is estopped from denying the promise or raising technical legal defenses, such as no consideration or statute of frauds.

The GPL is a "charitable subscription" -- a voluntary third-party donee beneficiary contract (the intended beneficiaries are the class "general public"). It is legally unenforceable for sundry reasons under U.S. law. Regardless of the legal reasons for contract failure, the donated copyright permissions will be enforced by the courts.

In the case of the GPL, the terms of the license are clear, and
no promise is violated by the copyright holder - the recipient
of the licensed software is always free to do exactly as the
license says.

Indeed, the promissory estoppel will work in the opposite
direction; by distributing GPLed software, the distributor has
promised to uphold the conditions of the license, and if he does
not do so, he must stop distributing because only be enforcing
his promise can injustice be averted.


-- "In light of their facts, those cases thus stand for the entirely unremarkable principle that 'uses' that violate a license agreement constitute copyright infringement only when those uses would infringe in the absence of any license agreement at all."; Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005). --

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