Re: Questions about legal theory behind (L)GPL
Michael Edwards wrote:
>Sorry, I'll try to be clearer. Even if the return performance is
>impossible without exercising rights only available under the license,
>it's still performance.
Right, this was the very specific question we were getting to. :-)
In determining the DFSG-freeness of a license, we seem to have decided
essentially that requiring action or forbearance regarding activities
outside the scope of the rights granted in the license renders a license
non-free. Of course, that has nothing to do with whether other requirements
(dependent on the license) are consideration under the law!
>The fact that the GPL licensee's obligations are, in some sense,
>impossible to perform without use of the granted license doesn't
>change this logic. It just contributes to the evidence that the
>licensee knowingly accepted the terms of the GPL.
OK, that's convincing. :-)
>If you can find it, check out Mattei v. Hopper 1958
>(California Supreme Court, referenced in Fosson and in many law course
>syllabi, such as
Couldn't find it immediately; I hope to eventually.
The description in the syllabus is
"Rule: a promise that is conditional on the promisor's satisfaction with a
related matter is enforceable."
Unfortunately, I don't quite grok what "the promisor's satisfaction with a
related matter" means! It sounds like it refers to the kind of question
we're discussing here though. If it does, that would be the case answering
the question which started the thread. :-)
Another points I found interesting about the syllabus was the section on
"Reliance as a basis of enforecement" (with cases dating to 1898).
"Reliance by the promisee is a separate and distinct basis for the
enforcement of promises"...
"A promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does
induce such action or forbearance is binding if injustice can be avoided only
by enforcement of the promise"...
"Promissory estoppel is a substitute for consideration"...
*This* was the part I was vaguely remembering. Users of GPL-licensed software,
BSD-licensed software, etc. -- and particularly creators of derived works --
quite definitely rely on the promises of the licensor to license under those
terms, and take actions based on them, and those actions would be deeply to
their detriment (and to the detriment of third parties!) if the promise is
broken. Furthermore, the person issuing software under the GPL should
reasonably expect (even desire) these actions. Injustice will be clearly
caused to everyone downstream if the promise is broken.
Another case quoted in that syllabus leapt out at me (this under the
>Feinberg v. Pfeiffer Co (Mo. 1959) (Gratuitous pension plan)
>Rule: a gratuitous pension plan is enforceable if the promisee retires in
>reliance on continued payments. Promissory estoppel is now a recognized
>species of consideration
I think that the reliance of the recipients of the GPL-licensed works on
the license is likely to be useful in proving that there is an
This was also interesting:
>The performance or return promise may be given to the promisor or to some
>other person. It may be given by the promisee or by some other person
This tends to indicate that the licensing requirements given by the GPL
-- and, indeed, the notice requirements in the BSD license -- can constitute
consideration even though they are not given directly to the licensor.
Various stuff also links in interestingly to what you say here:
>For what it's worth, the case law I've read (I don't have Nimmer or
>the like handy) points out that a "copyright license" is really just
>an enforceable promise not to pursue an infringement claim under
I guess I'm convinced. :-)
Nathanael Nerode <neroden at gcc.gnu.org>
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