Re: Time to put up or shut up!

[RJack]

Hyman Rosen wrote:
> On 4/14/2010 8:05 AM, RJack wrote:
> > Supporters of the GPL license as well as the SFLC claim that 
> > section 2(b) is a "condition" to the license: "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."
> >
> > Now, the definition of a "condition" is: "ARTICLE 224 Condition 
> > Defined: A condition is an event, not certain to occur, which must 
> > occur, unless its non-occurrence is excused, before performance 
> > under a contract becomes due."; ALR, Restatement (Second) of 
> > Contracts.
> >
> > The whole World awaits with 'bated breath for GPL supporters to 
> > either put up or shut up by identifying the two critical elements:
> >  1) the event; and 2) the performance.
>
> Section 2 of GPLv2 begins 
> <http://www.gnu.org/licenses/old-licenses/gpl-2.0.html> 2. You may 
> modify your copy or copies of the Program or any portion of it, thus 
> forming a work based on the Program, and copy and distribute such 
> modifications or work under the terms of Section 1 above, provided 
> that you also meet all of these conditions:
>
> A straightforward application of the Article 224 definition would 
> then consider the uncertain event to be modifying, copying and/or 
> distributing the covered work, and the performance would be the 
> "cause to be licensed" and the other requirements of the GPL.
>
> The extent to which it is meaningful to apply contract law to the 
> GPL, which is a license and not a contract, and how that interacts 
> with copyright infringement is, of course, the subject of our endless
>  argument.

The contract "performance" is based on the promise that
"You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program, and
copy and distribute such modifications or work...". In other
words the the performance of the promise (consideration) is
the copyright permissions (grant) to modify, copy and distribute
the offered source code.

In the definition of a "condition" (see above) the "event" must
must occur BEFORE the performance of the permissions becomes
effective. It is a logical impossibility for the "event" to depend upon
the contract "performance" and that is why the conditions in a copyright
license are called "conditions precedent". The "event" must PRECEDE
the "performance" (permissions) which are granted.

The "event" in section 2 which must occur is "provided that... 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."

Now, how do you cause a derivate work *that you have not yet* received
permission to create to be licensed to all third parties? Remember the
"event" must occur BEFORE permission to modify, copy and distribute is
granted. This is known as an "impossible condition" and is void. The
consequences of a void condition are construed against the drafter,
hence "promissory estoppel".

Sincerely,
RJack :)