Moglen's Assertion

[dlw]

I now understand why Eben Moglen so adamantly asserts
that the GPL is a pure license and that you don't have to
"accept" the license.

Here is a quote from Eben:
 
"The GPL says that you don't need to accept the license, but
you can't modify or redistribute unless you do, because
nothing gives you the right to do those things except the
license."  

I believe Eben Moglen is arguing that the GPL contains what
is know as a license "covenant"  ---  also known as a
"condition precedent" to the granting of a copyright
license. What this means is that your agree to something
*BEFORE* you get the license permissions.

--- Restatement  (Second) of Contracts
Section 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.

Unfortunately this is *not* valid in the exact same language
of a writing or document:

"A licensor may not simultaneously assert that the exact
same contract language is a covenant, claiming it has been
breached, and that it is not a covenant, but the definition
of the license. An action for breach of contract is
inconsistent with a copyright infringement action. 3 Nimmer
on Copyright §10.15[A] at 10-122-25 (1999 ed.)"
--- Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d
1115, 1118 (9th Cir. 1999).

You can't assert that the language of the GPL is a
"covenant" (condition precedent) and that the exact same
language is also a term of the "license". This is why the
GPL is truly a license that must be "accepted".
There is no *valid* "license covenant" (condition
precedent).
 
Look at the language of  the GPL:

"The precise terms and conditions for copying, distribution
and modification follow.
            GNU GENERAL PUBLIC LICENSE
TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND
MODIFICATION ...
 5. You are not required to accept this License, since you
have not signed it.  However, nothing else grants you
permission to modify or distribute the Program or its
derivative works.  These actions are prohibited by law if
you do not accept this License. Therefore, by modifying or
distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do
so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it."

The language of the "license covenant" is also term
number five (5) of the "license". This is forbidden by the
Sun Microsystems v. Microsoft citation to Nimmer above.
The language can't be both simultaneously.
 
Daniel Wallace