🚀 go-pugleaf

tower@AI.MIT.EDU (Leonard H. Tower Jr.) writes:
>    From: brnstnd@kramden.acf.nyu.edu  (Dan Bernstein)
>
>    To paraphrase Michael Berch: The GPL says it's a license, so it's a
>    license.
>
> This statement has no legal meaning.  It's semantically null for the
> purposes of this discussion.  Please ignore it.

Sigh.  You'll pardon my coming in late again; I had hoped not to get
roped into this one again.  The reductionist paraphrase above, which
is from an earlier discussion of the enforceability of the GPL in
light of state law that would invalidate it *as a contract* for lack
of consideration, leaves out an important distinction.  It's not that
GPL is a license just because it says it's a license, it's a license because
its content meets the legal test for being a license of copyright.
There is a key phrase from some case or other -- I am not convenient
to a law library, sorry -- that requires that a copyright license
be "an unambiguous grant of rights" or similar language.  (Not
"unconditional", mind you, just "unambiguous".)

>    Shrink-wrap licenses such as the GPL are generally unenforceable.
>
> The GPL is not a 'shrink-wrap license' as the case law being referred
> to defines this term.
>
>    This is contract law, not copyright law.
>
>    Please don't draw any analogy between my copyright limitations and the
>    GNU Public License.
>
> The GPL is not a shrink-wrap license but a statement of what the
> copyright holders of a GPLed program allow you to do with their
> copyrighted programs.  This is allowed under the copyright law.

I agree that the GPL is not a shrink-wrap agreement since there is
ample means to examine the terms before "purchasing" the FSF software.
In fact, I wonder if the contract-formation-avoidance theory that
invalidates some shrink-wrap agreements can ever apply to "free" (in
the sense that there is no license fee or rental fee or purchase price
or whatever) software.

The reason shrink-wrap agreements can be held unenforceable is because
when they state that the user/purchaser agrees to the terms of the
contract by breaking the seal on the copy of the software, there may
be no reason to believe that a contract has been formed -- i.e., a
"meeting of the minds" with the intent to enter into a contract.  They
are also almost uniformly contracts of adhesion.

But the fact remains that as copyright licenses -- grants of part of
the copyright holders exclusive bundle of rights -- they can be
perfectly valid.  (If they were not, under what theory could the
purchaser of the shrink-wrapped software claim any right to use or
copy the work?)

FSF's intention in placing its software under the GPL is to grant
to the user/copier certain of its exclusive rights (with limitations)
under copyright law, and to reserve others.  I am not aware of
anything in US copyright jurisprudence that would invalidate this,
particularly state law claims that any "contract" arising out of the
transfer of the copy fails for lack of consideration.  I do not see
the GPL as raising contract law issues, since by its face it is simply
a limited copyright license.  By way of analogy, what if a book
publisher gave away copies of its copyrighted works?  Because there is
lack of consideration, does this mean that the copyright (and
therefore the reserved rights of copying and derivative works, etc.)
is invalid and that owners of the copies are not prohibited by
copyright from exercising these rights?

--
Michael C. Berch
Member of the California Bar
mcb@presto.ig.com / uunet!presto.ig.com!mcb / ames!bionet!mcb