Wired Article on the GPL

[W. Yip]

On Fri, 31 Mar 2000 16:03:08 -0800, Chip Salzenberg <chip at valinux.com>
wrote:
>According to W . Yip:
>> As for intangibles like promises and forbearance, it must be recognised as
>> having economic value before it can take on the status of consideration.
>I see.  Thank you for grounding my speculation.
>(I suppose that's why an insurance contract _is_ a contract, then
>... though the insurance company has given me nothing but a promise,
>that promise will be of economic value if fulfilled?)

in UK,

I am not familiar with insurance law. I am cannot tell you *absolutely*
whether the assurance can be consideration. I have the impression that
insurance tends to use standard form contracts clearly stating your
position, but I may be wrong.

>From my understanding of contract law, in your insurance example it is more
appropriate to regard *your* payment of insurance premiums as
consideration, instead of the insurer's promise to pay when you break a leg
or something to that effect. 

Under UK Contract law, while (i) consideration must move *from* the
promisee, (ii) consideration need not necessarily move *to* the promisor
(but it can). This means a promisor can simply contract with the promisee
in a way which the promisor derives no benefit and the promisee suffers a
detriment. There are cases where giving up a job (Jones v. Padavatton) or
tenancy of a flat (Tanner v. Tanner) has been held as valid consideration,
where the other party to the contract enjoyed no corresponding benefit.
This is the reason why I say your payment of insurance premiums is
consideration, and not likely the promise by the insurance company.

It can sometimes be difficult to determine who is promisor and who is
promisee, but for the GPL, I suppose the licensor is the promisor
(promising rights and making the 'offer', particularly since the GPL speaks
of what constitutes 'acceptance' in s.5) and the licensee is promisee
(promising abstinence from non-complaint distribution).

>> IMHO, consideration is one of those moot points best left for
>> discussion on the specific facts when a dispute arises, after which
>> the best argument wins.
>Hm.  Does that mean that if the GPL is tested in court, it is likely
>that the ruling will likely be narrow, based on the definitions of
>'consideration' used by the involved parties?  (IYO, of course.)

IMHO, I do not regard 'consideration' as determining the case such that the
ruling will be based on its definition. I think it relevant only for
purposes of finding the *existence of a contract* in jurisdictions where
(i) the UCITA does not apply, and (ii) contractual formation requires
'consideration'.

A finding of the GPL as contractual license would make it much harder for
revocation, this being so because the permission in the license is
transformed into a contractual obligation. 

IANAL (yet)