Re: GPL question

[rjack]

Alexander Terekhov wrote:
> rjack wrote:
> > Alexander Terekhov wrote:

> I hope than Monsoon folks will take an opportunity to trash Moglen's 
> nonsensical GNU legal theory myths in federal court. 

The GPL myth gives rise to another problem.

That problem is "legal standing". A license such as the GPL 
contains terms that direct "designated third party 
beneficiaries". The GPL's term 2(b) demands:

b) 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.

Any consideration flowing from the GPL is assigned to "all third 
parties". This consideration is certainly sufficient under 
contract law to form a valid contract:

“In addition, under contract law, a contract is supported by 
consideration even if the consideration flows solely to a third 
party. See Mencher v. Weiss, 114 N.E.2d at 181(“[I]t is 
fundamental that a benefit flowing to a third person or legal 
entity constitutes a sufficient consideration for the promise of 
another.”); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e (1981) 
(“It matters not from whom the consideration moves or to whom it 
goes. If it is bargained for and given in exchange for the 
promise, the promise is not gratuitous.”); see generally 3 
WILLISTON § 7:5, at 60 (“It is well settled that a detriment 
suffered by the promisee at the promisor’s request and as the 
price for the promise is sufficient, despite the fact that the 
promisor is not benefited as well.”); In re: Asia Global 
Crossing, Ltd., et al. 322 B.R. 247 (Bankr. S.D.N.Y., March 21, 
2005).

There is a fundamental principle underlying all actions in 
federal courts:

“Standing doctrine delimits federal jurisdiction to, among other 
things, cases involving real injuries to plaintiffs, the 
so-called "injury-in-fact" requirement.”; Brooklyn Legal Services 
Corp. v. Legal Services Corp., 462 F.3d 219 (Second Cir. 2006).

Although the copyright owners filed the action in federal court 
in the Monsoon case they have suffered no "injury in fact" from 
the claimed breach of the GPL -- which is stated in the complaint 
as failure to provide access to the work's source code under sec. 
2(b) requirements. As we have seen, sec. 2(b) requires access to 
source code be provided to "all third parties" and not the 
original licensor. In the legal arena you can't claim damages 
from some else's injuries. A plaintiff must suffer a personal 
"injury in fact" before he has standing in court. In the United 
States designated third party beneficiaries have standing to sue 
in their own right.

"The "irreducible constitutional minimum of standing contains 
three elements": "[T]he plaintiff must have suffered an injury in 
fact," "there must be a causal connection between the injury and 
the conduct complained of, " and "it must be likely . . . that 
the injury will be redressed by a favorable decision." Id. At 
560-61 (internal quotations omitted).(5) The plaintiffs, as the 
party invoking federal jurisdiction, bear the burden of 
establishing these elements. Steel Co. v. Citizens for a Better 
Env't, 523 U.S. 83, 103 (1998). Failure to establish any one 
deprives the federal courts of jurisdiction to hear the suit.; 
Elizabeth Rivera v. Wyeth-Ayerst Laboratories (01-40122) (5th 
Cir. 2002)