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Re: Bye - Bye , open source derivative works litigation

From: David Kastrup
Subject: Re: Bye - Bye , open source derivative works litigation
Date: Thu, 11 Feb 2010 19:01:56 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1.92 (gnu/linux)

Hyman Rosen <> writes:

> On 2/11/2010 11:26 AM, RJack wrote:
>> 2) "A Gentlemen's Agreement: Assessing the GNU General Public License
>> and its Adaptation to Linux". Chicago-Kent Journal of Intellectual
>> Property, Vol. 6, p. 213, 2007.
> <>
>     Existing case law surrounding shrinkwrap and browsewrap
>     licenses that use a notice-plus-conduct model suggests
>     that courts would find that the GPL creates an enforceable
>     contract, if a party challenged this point directly.

That's simply nonsensical since the GPL is not on software wrappings and
not clickthrough and not notice-plus-conduct.  It would appear that the
author of the paper is not familiar with the usual distribution forms.

There is no "by opening this package you signify your acceptance" or "by
clicking this button you signify your acceptance" or similar.

>     ...
>     However, as long as the requirement of the GPL is clear to
>     both licensor and licensee before contract formation, then
>     the notice-plus-conduct model contemplated by the GPL
>     operates successfully despite the lack of formal notice in
>     practice. Courts will likely hold Linux developers to the
>     same standard as parties who receive printed forms and
>     choose not to read them.
>     ...
>     Regardless of the interpretation of the GPL as a license or
>     as a contract, the text of the GPL helps to determine its
>     enforceability.

In a way.  The text of the GPL states that it is your own choice whether
you accept it or not.  So the determination is "no".

David Kastrup

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