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Re: Artifex v. Diebold: "The GPL is non-commercial!"

From: Rjack
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Wed, 04 Feb 2009 20:25:28 -0500
User-agent: Thunderbird (Windows/20081209)

My point concerning the unenforceability of the GPL was
pointed out to Eben Moglen by Professor Robert P. Merges of the
Berkeley Law School in June of 2000:

"Professor Robert P. Merges of the Berkeley Law School noted some of
the problems in his "The End of Friction? Property Rights and
Contract in the 'Newtonian' World of On-Line Commerce" (12 Berkeley
Tech. L.J. 115), in which he describes the GPL as "informal (i.e.,
not legally enforceable) restrictions on digital content."

Not legally enforceable?

"By its own terms, the copyleft agreement is an unusual license; at
the most basic level consider the problem of determining damages
when the licensee frustrates the licensor's expectation of zero
profits under the contract," writes Merges. "But what is most
significant about the agreement is that it purports to restrict
subsequent transferees who receive software from a licensee,
presumably even if the licensee fails to attach a copy of the
agreement. As this new transferee is not in privity with the
original copyleft licensor, the stipulation seems unenforceable."

This isn't as complicated as it sounds. "Privity" simply means party
to the contract, and it works both ways: I can sign a contract with
you whereby you give me some money and I send flowers to your
mother. If I fail to send the flowers, you can sue me, but your
mother can't, because she's not a party to the contract. Likewise, I
might sign an agreement with you whereby I give you some money and
in return you agree that your mother will come to my house and, I
don't know, bake a pie some Sunday afternoon. Your mother is not
obligated to live up to the terms of the agreement, because she's
not party to it. If she doesn't bake the pie, I can't sue her but I
can sue you.) Merges's point is that the GPL isn't an enforceable
contract because it obligates parties who did not agree to it."

Moglen's answer was that a license was *not* a contract.

Rjack :)

-- "Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006) --

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