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Re: Sharing the GPL source code, with value addition by vendor specific

From: RJack
Subject: Re: Sharing the GPL source code, with value addition by vendor specific to his hardware?
Date: Wed, 08 Dec 2010 16:03:36 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100915 Thunderbird/3.1.4

On 10/11/2010 10:39 PM, Barry Margolin wrote:
In article<>,
RJack<>  wrote:

On 10/11/2010 2:49 AM, Saliya wrote:

I write this email to get an answer for the question "Can the
vendor charge for the GPL source code, for his value addition to
the source code?"

If the vendor's value addition to the GPL source code consists of
his own original work, the vendor has the *exclusive right* under
U.S. copyright law (17 USC sec. 106) to charge whatever he wishes
for his additional contribution.

Sincerely, RJack :)

But if he combines it with someone else's work, distributing the
combination requires the authorization of the other author as well.
The GPL specifies the conditions under which that author allows such

Unfortunately it is folks like you who are at a total loss when speaking
of "conditions" in copyright contracts.

Almost invariably, a "scope of use condition" is confused with a
"condition precedent" in copyright contracts. A "scope of use" condition
has been described by the Supreme Court:

"An unlicensed use of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
417 (1984).

A "scope of use condition" must directly restrict one of the the
exclusive rights enumerated in 17 USC sec. 106.

The above must be contrasted with a "condition precedent" which is
defined in the Restatement (Second) of Contracts sec. 224 as:

"A condition is an event, not certain to occur, which must occur,
unless its non-occurrence is excused, before performance under a
contract becomes due."

GPL sec. 2(b) to which you are referring, contains no valid condition
precedent controlling the performance of a grant of permissions
involving derivative works. The GPL is unenforceable under contract law
and gives rise to an equitable action for promissory estoppel.

RJack :)

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