The GPL and contract rescission

[rjack]

The original licensors of GPL’d BusyBox software have no standing to sue 
for material breach of the GPL license.

The SFLC complaint drafted against Monsoon Media claims in part:

“8. Under the License, Plaintiffs grant certain permissions to other 
parties to copy, modify and redistribute BusyBox so long as those 
parties satisfy certain conditions. In particular, Section 2(b) of the 
License, addressing each licensee, 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.”

A careful review of the GPL license reveals that the intended 
beneficiaries are “all third parties” [sec. 2(b)] – not the original 
licensor(s). The complaint asks rescission of the license based on 
copies of the source code not being made available to potential 
recipients (“all third parties”).

In the Monsoon case, in order to claim rescission of the GPL the 
original licensors are basing their standing to do so on the basis an 
injury to “all third parties” such that they do not receive source code. 
The licensors in their own persons have suffered no “injury in fact” in 
order to confer standing to sue for breach of contract and rescission. 
Only the (unidentified) injured third party beneficiaries may sue for 
the failure to make source code available.

"Standing" means that a plaintiff has a personal stake in the outcome of 
a dispute sufficient to obtain judicial resolution of that controversy. 
The concept focuses on whether the litigant is the proper party to fight 
the lawsuit, and requires the plaintiff to be injured or have been 
threatened with injury. In other words, no party is entitled to argue an 
action unless he himself is adversely affected by it. BLACK'S LAW 
DICTIONARY, 1413 (7th ed. 1999).