(OT) - Major Blow to Copyleft Theory

[Michael Poole]

Arnoud Engelfriet writes:

> John Cowan wrote:
>> I don't understand why civil lawyers have so much trouble.  Methods
>> of contract formation aside, the unilateral/bilateral distinction
>> should be exactly the same.  Copyright breach is a delict, but like
>> lots of delicts, there can be a waiver either before or after the
>> fact, and it can be conditional.  Where's the contract element?
>
> As a civil lawyer, the main problem for me is that even the simplest
> interaction between the parties creates a contract.
>
> "Would you like a cookie?" - "Yes."
> Offer, acceptance - contract. 
>
> "It's raining, why don't you come in?" - "Great, thanks!"
> Offer, acceptance - contract.

The significance of whether the GPL is a contract is tied to common
(or at least US) law consequences of contract violation: in the US, a
court will usually remedy a contract violation through monetary
damages rather than ordering specific performance -- unless real
property is involved.  To meet its goal of increasing free software,
the FSF would obviously prefer to impose specific performance on GPL
violators.

Does such a distinction exist under civil law?  If not, the difference
in contract formation may not be relevant.  Judging from Harald
Welte's gpl-violations.org efforts, specific performance is an
available remedy under German law.

Michael Poole