Re: GPLv3 comedy unfolding -- Linus: "I've been told by several independent sources..." (re "GPLv2 is not a 'contract' but a 'pure copyright license'")

[Alexander Terekhov]

Linus Torvalds wrote:
> 
> On Sat, 16 Jun 2007, Ingo Molnar wrote:
> >
> > btw., still ianal, but the GPLv2 is not a "contract" but a "pure
> > copyright license".
> 
> I've been told by several independent sources that it really doesn't
> matter.
> 
> The "pure license" argument was born largely for silly reasons: people
> claimed (a _loong_ time ago) that the GPL wasn't enforceable in the US
> because in order to be enforceable, something of value has to change hands
> (in the US, for example, it would be common to "sell" something for a
> nominal sum of $1 USD rather than to give it outright, to "seal the deal"
> and make it irrevocable).
> 
> That's generally considered a specious argument, apparently. In most
> jurisdictions in the US, a license and a contract are judged to be legally
> exactly the same thing, and if you don't follow the GPL and have no other
> contract to show for it, you're in violation of federal copyright law, so
> whether it is a license or a contract really doesn't matter.
> 
> So it's true: the GPL just gives you rights, and without it you have no
> rights (other than fair use ones etc), and blah blah. But the distinction
> between "license" vs "contract" really isn't a very important one in any
> case.
> 
> > Furthermore when you get source code of free software then there is no
> > "meeting of minds" needed for you to accept the GPL's conditions, and
> > only the letter of the license (and, in case of any ambiguities, the
> > intent of the author of the code) matters to the interpretation of the
> > license, not the intent of the recipient. (while in contract cases both
> > the meeting of minds is needed and the intent and understanding of both
> > parties matters to the interpretation of the contract.)
> 
> I do agree that you can probably use this to say that the intent of the
> copyright has a stronger position, and that his "intent" thus matters
> more.
> 
> But I suspect that the "intent" angle is fairly weak legally to begin
> with, and if you cannot show that the intent was mutual, it's probably
> weaker still. So yeah, the intent of the copyright owner arguably might
> matter more, but quite frankly, I suspect everbody is better off not
> worrying so much about "intent", and worrying more about the "terms and
> conditions" part.
> 
> (I've said several times that intent _matters_, I just don't want people
> to think that it matters a whole lot).
> 
> What is pretty clear, though, is that the intent of a third party in the
> license/cotnract matters not at all. In the case of the kernel, the FSF
> being such a third party.
> 
>                         Linus

regards,
alexander.

--
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