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Re: The GPL means what you want it to mean


From: Rjack
Subject: Re: The GPL means what you want it to mean
Date: Mon, 06 Apr 2009 11:14:26 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

Alan Mackenzie wrote:
In gnu.misc.discuss Rjack <address@hidden> wrote:
Alan Mackenzie wrote:

Where do you see the difference, in practice, between software
 being in the public domain, and software being licensed under
 the GPL, understood as you understand it?

Code in the public domain doesn't have ownership or other rights attached to it. That's a BIG, BIG, difference between code in the
public domain and code subject to claims of promissory estoppel.
Claims of promissory estoppel would give a particular litigant
rights to use the code IF the claim meets the criteria:

"Certain elements must be established to invoke promissory estoppel. A promisor ? one who makes a promise ? makes a gratuitous promise that he should reasonably have expected to induce action or forbearance of a definite and substantial character on the part of the promisee?one to whom a promise has been made. The promisee justifiably relies on the promise. A substantial detriment ? that is, an economic loss ? ensues to the promisee from action or forbearance. Injustice can be avoided only by enforcing the promise." http://legal-dictionary.thefreedictionary.com/Promissory+Estoppel




Well thanks, and all that, but the above is in legalese. Presumably
it means something to lawyers. Where's the BIG, BIG, difference, when the legalese is translated into English?

We'd all love for the lawyers to be ceremoniously fed to the the
sharks. Unfortunately, many activities in life can't be summarized
into simple sound bites.


For example, if someone uses your licensed code and invests a million dollars in developing and improving the code then they shouldn't be out a million dollars because the copyright license that *you* offered turns out to be legally unenforceable. This principle is implicit in the rule of contract interpretation which holds that contracts are construed against the offering (drafting) party.

You've asserted, occasionally, that the GPL is unenforceable. Assuming for the current purposes that you're right, then your last
 paragraph seems pretty much the same as saying that if the code is
GPL'd, he can freely invest a million dollars in a way which violates the GPL, yet not be subject to any sanctions by the copyright holder.

This is, in effect, the same as GPL code being in the public domain. Isn't it?

Public domain code is freely available without legal reservation.
*Anyone* who desires to use it may do so without legal consequence.
As I previously stated, promissory estoppel is available only to a
specific *individual* party who first goes to court and proves to the
court that he is entitled to some equitable right.

1) Public domain rights are are freely available to the *whole world*.

2) Equitable rights granted through promissory estoppel by court
decree are *personal* rights and have nothing to do with public domain
rights.

Sincerely,
Rjack :)







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