Re:

[Thomas Bushnell BSG <tb@becket.net>]

"Michael K. Edwards" <m.k.edwards@gmail.com> writes:

>> Um, it is true that the rules for interpreting the meaning of licenses
>> are more or less the same as the rules for interpreting contracts.  It
>> does not follow that licenses are therefore contracts.
>
> The words "license" and "contract" are indeed not synonymous under
> law.  But the law applicable to offers of contract containing grants
> of license is contract law (or the equivalent codes in civil law
> systems).

You're speaking too vaguely.  The law applicable to offers of contract
is of course contract law.  It does not follow that the GPL is thus an
offer of contract.  Indeed, it explicitly disclaims any such intention
itself.  It would be a curious offer of contract indeed that labelled
itself not an offer of contract.

>> Huh?  What about the license as just what it purports to be: a
>> license?
>
> You're a little bit late to the party.  Check the debian-legal
> archives for debate and case law out the yin-yang.  There's no such
> thing as a "copyright-based license".

I didn't call it a "copyright-based license."  I said it's a license.

>> There is a thing you are not considering: it is a unilateral grant of
>> conditional permission.  This is a perfectly well-traveled area of
>> law.
>
> Also part of contract law; and not applicable to the GPL, which does
> not lack for acceptance or consideration.  Thread at
> http://lists.debian.org/debian-legal/2004/12/msg00209.html .

I don't care what is "part of contract law."  I care if the GPL has
the legal status of a contract.  You keep discussing *other* questions
instead of that one.

The GPL is a unilateral grant of permission, a concept which is
independent of contract (whether you lump it together with contracts,
in one thing called "contract law" is irrelevant to me).  A unilateral
grant of permission lacks the features of contract, but is still a
perfectly real thing.  Estoppel (which you have noted) indeed attaches
upon such grants of permission: having granted me permission to enter
your land, you cannot then sue me for (say) trespass.  

If your grant of permission to enter your land was simply a unilateral
grant, it is not a contract, it is a grant of permission.  It is also
binding on you: having granted me permission, you cannot then sue me
for trespass when I take you up on it.

Now a grant of permission can be revoked, which is a different
question.  If the FSF turned nasty, could they revoke the permission?
The question here is likely one of reliance.  If I have relied on a
future-tense permission (perhaps if you told me "you may enter my land
forever") then to the extent of my reliance, you can't sue me for
trespass.  The bindingness of such things is tricky, and nobody knows
how far it goes if the FSF actually attempted to revoke the
permissions given.

Indeed, for this reason the FSF acquires copyright through a contract
with authors such that the authors retain permanently the right to
distribute their work under any terms they like, and in which the FSF
is contractually bound to distribute only under free software
licenses.  In this way, the FSF can assure authors and the world that
its hands are tied and one need not worry about such a revocation of
permission.  (This is relevant, because a legal judgment against the
FSF could result in its assets being transferred to some nasty
person.)

But the point is really almost irrelevant.  If the GPL is actually a
contract and not a grant of permission, then what follows?  If you
have agreed to the contract, it's binding, and that's that.  If you
have not, then there is no arrangement under which you are permitted
to distribute the software, and so you can be sued for copyright
violation by the FSF.  Since this is exactly the state of affairs
which the grant-of-permission argument claims would obtain, what is
the practical difference?

Indeed, reduction to practice is the point.  If the GPL successfully
achieves its ends, then it works.  And it does, in fact, achieve
them.  On numerous occasions the GPL has shown that it is a powerful
instrument for insuring compliance with its provisions as they were
intended, even upon reluctant or recalcitrant redistributors.  

And finally, for Debian's purposes, it's even more irrelevant.  Our
standing policy is that if there is doubt about the force or intention
of a license, we err on the side of simply doing what the licensor
demands.

Thomas