Re: Attorney fees

[rjack]

Hyman Rosen wrote:
> rjack wrote:
> > A court would agree to that because of a doctrine under U.S. common
> > law known as promissory estoppal:
>
> What in the world are you talking about? Promissory estoppel
> applies when someone is induced to action because of a promise
> made, and then the one who made the promise refuses to honor it.
I don't know where you you found the "refuses to honor it" as the exclusive
reason to invoke promiisory estoppel.

Here is the 1981 update to The Restatement (Second) of Contracts):
"§ 90. Promise Reasonably Inducing Action or Forbearance

   1. A promise which the promisor should reasonably expect to induce action or 
forbearance on the part of the promisee or a third person and which does induce 
such action or forbearance is binding if injustice can be avoided only by 
enforcement of the promise. The remedy granted for breach may be limited as 
justice requires.
   2. A charitable subscription or a marriage settlement is binding under 
Subsection (1) without proof that the promise induced action or forbearance."


A promise to give money to a charity is a classic example of promissory estoppel 
under § 90 (2) which will be enforced by a court when the charity makes 
expenditures or incurs obligations in reliance upon the promise. The promisor is 
estopped from denying the promise or raising technical legal defenses, such as 
no consideration or statute of frauds.

The GPL is a "charitable subscription" -- a voluntary third-party donee 
beneficiary contract (the intended beneficiaries are the class "general 
public"). It is legally unenforceable for sundry reasons under U.S. law. 
Regardless of the legal reasons for contract failure, the donated copyright 
permissions will be enforced by the courts.

> In the case of the GPL, the terms of the license are clear, and
> no promise is violated by the copyright holder - the recipient
> of the licensed software is always free to do exactly as the
> license says.
>
> Indeed, the promissory estoppel will work in the opposite
> direction; by distributing GPLed software, the distributor has
> promised to uphold the conditions of the license, and if he does
> not do so, he must stop distributing because only be enforcing
> his promise can injustice be averted.

Sincerely,
Rjack

-- "In light of their facts, those cases thus stand for the entirely 
unremarkable principle that 'uses' that violate a license agreement constitute 
copyright infringement only when those uses would infringe in the absence of any 
license agreement at all."; Storage Technology Corp. v. Custom Hardware 
Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005). --