Why the GPL is invalid.

[daniel wallace]

In the case of the GPL an original "preexisting" author A
prepares (authorizes) modification of his "preexisting"
work and grants permission to distribute his "preexisting"
work. Author B accepts these permissions granted by the
GPL and modifies the "preexisting" work. This is now a
"derivative work".
 
Author A and Author B are in contractual "privity". Author
A approached Author B with a GPL license and Author B
said to Author A, "I accept the GPL and agree to its
terms." There was a "meeting of the minds" so Author A and
Author B are in "privity"... they are not strangers to
each other (in the legal sense).

Author B now has all the permissions required to copy
(distribute) the derivative work and he does so. This is a
perfectly valid contract except for one problem... it
requires modifying Author B to distribute the derivative
work with the condition added that:
   
"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."

So Author B approaches Author C with a GPL license and
the derivative work created by Author A and Author B
above. Author C says to Author B, "I accept the GPL and
agree to its terms." There was a "meeting of the minds" so
Author B and Author C are in "privity"... they are not
strangers to each other (in the legal sense).

Now Author A and Author C are *not* in privity. Author B
approached Author C. Author A and Author C are legal
strangers since there was no "meeting of the minds".
Author A is in privity with Author B and Author B is in
privity with Author C but Author A and Author C remain
legal strangers.

Now Author C creates a derivative work and goes out and
violates the GPL by attempting to charge for a license.
 
Author A says to Author C you're infringing on my
copyrights in my original "preexisting work. You must live
up to the terms of the GPL license which I originally
used to grant permission... but unfortunately Author A and
Author C are, in the legal sense, total strangers.

Author A has created a marvelous new contract license for
his work that binds not only to Author B, who is in
privity with Author A, but also binds parties who are
legal strangers to Author A, such as Author C.

Now look at:

"In ProCD, for example, the court found that the mutual
assent and consideration required by a contract claim
render that claim qualitatively different from copyright
infringement. 86 F.3d at 1454. Consistent with Data
General's reliance on a contract element, the court in
ProCD reasoned: 'A copyright is a right against the world.
Contracts, by contrast, generally affect only their
parties; strangers may do as they please, so contracts do
not create exclusive rights.' Id. Indeed, the Supreme
Court recently noted: '[i]t goes without saying that a
contract cannot bind a nonparty.' EEOC v. Waffle House,
Inc., 534 U.S. 279, 122 S.Ct. 754, 764, 151 L.Ed.2d 755
(2002). This court believes that the First Circuit would
follow the reasoning of ProCD and the majority of other
courts to consider this issue."
--- Bowers v. Baystate Technologies Inc., 64 USPQ2d 1065
(CA FC 2002)

See the Supreme Court citation "[i]t goes without saying
that a contract cannot bind a nonparty."?

This citation alone implies that as a contract the GPL
contains an invalid term. That term is the requirement
that your redistribute using the GPL. Were that term
binding, it would establish a new "right against the
world" by abolishing requirements of privity in contract
law.

This is what confounds analysis of the GPL. It's a
perfectly innocent looking contract until the
redistribution term attempts to abolish the
privity requirement of contract law.

Since the GPL contains a term that purports to abolish
"privity" requirements for third parties, it may be ruled
invalid as a contract before the court ever proceeds to
the stage of examination under section 301 preemption.
 







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