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Re: Questions about legal theory behind (L)GPL

Michael K. Edwards wrote:
On Mon, 20 Dec 2004 14:46:43 -0500, Nathanael Nerode
<neroden@fastmail.fm> wrote:

Warning: IANAL.

IANAL either.  Just interested (at least in the non-legal sense).

1)  The (L)GPL is legally an offer of contract, right?

It was claimed during the debian-devel discussion that the LGPL is
somehow a unilateral grant of rights under some legal theory other
than contract, which doesn't make sense to me.

If you agree to the GPL (or LGPL), you do not lose any rights you would have
had if you hadn't agreed to it.  It strictly increases the things you are
legally allowed to do.

This is what we meant when we said that the GPL is "not a contract".


The GPL is more of an *offer* than a contract in itself.

In the only case I know of where the GPL was tested in court (Progress
Software vs. MySQL,
), the court of fact is clearly applying contract standards, not
copyright.  This isn't as strong a precedent as an appellate court's
ruling on issues of law, but it is perhaps indicative of judicial
attitudes on "non-contract licenses", especially since Professor
Moglen argued the case for "copyleft" in his affidavit
(http://www.fsf.org/press/mysql-affidavit.html ).

I noticed something interesting on groklaw the other day (in
http://www.groklaw.net/article.php?story=20041221062757984 ):

"In law school, first-year law students are taught that a contract is an exchange of promises: a promise for a promise...."

"...As stated above, a contract is an exchange of promises. A glaring exception is gifts. Often, a promise to make a gift, with no return obligation whatsoever, is an enforceable contract."

I think this clarifies the issue here. What we have been saying about "not a contract" was based on a, shall we say, "first-year" understanding of the law. The GPL is not necessarily an exchange of promises -- it may not have consideration.

However, if the contract formed in the GPL isn't such an "exchange", then it can only be one thing: a promise to make a gift. And presumably one of a variety which is an enforceable contract.

So in some regards the presence or absence of consideration may not matter; it appears to be governed by contract law either way.

Ah, but the nature of the conditional promises in the case of the GPL is
rather interesting; essentially all of them constitute restrictions on the
granted permissions.  They do not restrict any behavior which would have been
allowed if they GPL had not been agreed to.  This is the rather interesting
point which has been noticed.


"If you do X (distribute binaries) you must do Y (redistribute
source)" seems like a fairly normal conditional-promise formula to me.
It may look like it, but it really has an odd difference.

"If you do X (which I am giving you a license to do, and you may not do otherwise), you must also do Y (which I am giving you a license to do, and you may not do otherwise)".

There's a reason I used the analogy of "You may walk on my property, provided you walk barefoot". It's different from "You may walk on my property, provided you give me five dollars". Despite the formulation, it actually amounts to "You may walk barefoot on my property."

 There is also case law establishing that redistribution itself is of
value to the copyright holder.  Planetary Motion v. Techplosion 2001
(http://www.law.emory.edu/11circuit/aug2001/00-10872.man.html ) found
that the intangible benefits of releasing software under the GPL were
sufficient for a software developer not to be an "eleemosynary
individual" (charitably motivated) even in the absence of an immediate
profit motive.
Very interesting.

Note that this isn't quite the same thing as proving consideration,
Based on the bit I quoted above, consideration may actually turn out to be irrelevant for most purposes. Which would simplify our lives. :-)

and no copyright issue associated with the GPL material arose --
except that GPL release was judged not to be release into the public
domain, which is good to have on the appellate record.  Planetary
Motion had purchased the GPL author's rights in order to strengthen an
unrelated trademark case.  (Amusingly, the appellate court decision
was a Pyrrhic victory for Planetary Motion -- the district court's
permanent injunction against Techplosion's use of the trademark was
upheld, but the award of $275,508 in attorneys' fees was vacated.)

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