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Re: Bug#317359: kde: ..3'rd "Help"->"About $KDE-app" tab calls th e GPL "License Agreement", ie; a contract.

On Thursday 14 July 2005 01:00 pm, Patrick Herzig wrote:
> On 7/14/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> > But I'd really like to return to the question that got us all started. 
> > Is calling the GPL a "License Agreement" a bug?  Apparently my "you have
> > to agree to the GPL anyway" theory has gotten people all worked up... 
> > so, obviously that's not going to convince anyone on this list.  So can
> > someone explain to me why its NOT a license agreement?
> Even in Civil Law countries where almost every transaction is
> considered a contract the GPL itself would not be "the agreement". The
> GPL lacks the form required for an agreement: It does not contain any
> language that would indicate an agreement such as "the parties hereby
> agree..." nor does it contain signature lines or even checkboxes where
> the parties could indicate their agreeing to the terms. The fact that
> would make a transaction involving the GPL an agreement is that the
> parties, as part of exchanging the license, agree on something, be it
> by written contract, by handshake, or even by implied agreement. The
> whole transaction then is the agreement, consisting of the agreement
> act itself and for example as an annex, the GPL.

This is not the 19th century...  the specific mechanics of a form are not an 
issue like they once were.  An agreement does not need to be written, or 
shook on, or any of that signed, sealed, and delivered stuff.  If an 
understood oral agreement is a contract, then I'm fairly certain the GPL is 
considered a contract.  That is, so long as it is not a pure license...  a 
point to which I am conceeding for today.  But if it is a license, how is it 
NOT also a license agreement?  To exercise the rights under the licenses, 
does not one have to agree?

> > Do you not in fact have to
> > agree to the GPL if you intend to use the rights under the GPL?
> The language of the GPL clearly contradicts this and that expliciticy
> (is that a word?) IMHO clearly trumps any semantics argument about how
> you actually make a copy when receiving a file over FTP.

Really people...  I'm getting bored of saying this.  Just because something 
says it is or is not X, does not mean it is or is not X.  In copyright law, 
the clearest example of this is "work for hire."  You cannot say something is 
"work for hire" unless you behave like it is a work for hire.  I suggest to 
you that Section 8 is not enforcable.  The main reason for it to be 
unenforcable is because of the warranty provisions...  but it is also not 
enforcable because the GPl is strangly worded that it would never need to be 
enforced.  Its really hard to violate the GPL, and if I am violating the GPL, 
I have engaged in conduct that manifests consent under Section 8.  So I don't 
envision a court getting to any of these legal issues.

But for the sake of everyone listening, I want to reiterate why this point is 
important.  IF I am wrong, and the GPL is not a biding agreement, then the 
warrenty provisions are void.  If they are void, Debian and all of the other 
Linux distributers could be potentially liable for mechantability and other 
exciting damages.  Does anyone here think that's a good thing?


Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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