Re: The GPL means what you want it to mean

[Rjack]

Thufir Hawat wrote:
> On Fri, 03 Apr 2009 07:44:43 -0400, Rjack wrote:
>
> > The Free Software Foundation has *never* advanced a legal 
> > argument to refute the fact that the GPL is contractually 
> > unenforceable and preempted by the Copyright Act.
>
>
> What's your argument that isn't enforceable?

The GPL is unequivocally a contract under U.S. law. (More specifically
it is a contract for a "grant of permission" or license.)

Section 2(b) states:

"You must cause any work that you distribute or publish, that in whole
or in part contains or is derived from the Program or any part
thereof, to be licensed as a whole at no charge to all third parties
under the terms of this License."

To summarize, this means the GPL is a contract to requiring that:

1) "you must cause"

2) "any work to be licensed as a whole"

3) "to all third parties"

4) "under the terms of this License"

Therefore the *distributor* of GPL licensed code must cause a new
contract to be formed between himself and the members of the general
public that covers the created derivative work "as a whole".

The GPL is a 'contract to make a contract' with the general public to
distribute a derivative work. The GPL is therefore a "contract to make
a contract". So. . . how is a contract between two parties to make a
*new* contract with a *yet to be identified* third party for a *yet to
be created* "derivative of a derivative" work going to be enforced?

The short answer is it can't be enforced. See:

"[A] contract to make a contract is enforceable only where all
material terms have been agreed upon. 1 Corbin, Contracts, sec. 2.8,
at 131, 133-34 (Perillo ed. 1993). Prisma Zona's own statements, and
the service contract drafts which it attaches, show that material
issues were still open."; 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)”

“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)

"‘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).

The GPL is also preempted by 17 USC sec. 301(a).

"Sec. 301. Preemption with respect to other laws
(a) On and after January 1, 1978, all legal or equitable rights that
are equivalent to any of the exclusive rights within the general scope
of copyright as specified by section 106 in works of authorship that
are fixed in a tangible medium of expression and come within the
subject matter of copyright as specified by sections 102 and 103,
whether created before or after that date and whether published or
unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such
work under the common law or statutes of any State."

Sincerely,
Rjack :)