[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: The GPL means what you want it to mean

From: Rjack
Subject: Re: The GPL means what you want it to mean
Date: Sat, 04 Apr 2009 12:08:49 -0400
User-agent: Thunderbird (Windows/20090302)

Rjack wrote:
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).

I disclaim any actual knowledge of the law in non-US based
jurisdictions I will speculate that the GPL would be ruled
unenforceable in England as a matter of English contract law.
American common law is historically based upon English
common law:

"1.  This Act shall be known as THE CIVIL CODE OF THE STATE OF
CALIFORNIA, and is in Four Divisions, as follows:
. . .
22.2.  The common law of England, so far as it is not repugnant to
or inconsistent with the Constitution of the United States, or the
Constitution or laws of this State, is the rule of decision in all
the courts of this State."

reply via email to

[Prev in Thread] Current Thread [Next in Thread]