Why the GPL is invalid.

[Seth Johnson]

The GPL is not a contract.  It requires no consent and no privity.

The author simply declares how she exercises her rights.  Nobody has 
to agree to it.

Seth Johnson

-----Original Message-----
From: daniel wallace <danw6144 at insightbb.com>
Date: Thu, 12 Feb 2004 16:40:33 -0500
Subject: Why the GPL is invalid.

> 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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