🚀 go-pugleaf

In article <1119:Apr2909:36:4690@stealth.acf.nyu.edu>
brnstnd@stealth.acf.nyu.edu writes:

   In article <1749@aber-cs.UUCP> pcg@cs.aber.ac.uk (Piercarlo Grandi) writes:
   > If the GPL is null and void, then the software covered cannot be copied by
   > anybody

   That just isn't how United States contract law works. A contract of
   adhesion is resolved against the adhesing party. In most cases that
   means that all ambiguities and unenforceable portions of the contract
   are interpreted the way the other party interprets them.

But I reckon that the GPL *isn't* a contract. It has almost nothing of a
contract. It is certainly not a shrinkwrap license, or anything similar;
there are no conditions, consieration, or whatever else for you to get
and use a copy of GPL software; anybody can get a copy for free, and the
copy you get is yours 100%, not licensed or leased to you. You have full
ownership of the copy, just as for a book.

The GPL only imposes conditions on *distribution*, i.e. where you make
further copies from your copy in order to give them away. It gives you
unconditional permission to make further copies for your own use.  If
the GPL did not exist, you could get copies to free software, but you
could not make further copies either for your use or for giving them
away.

The GPL is not an agreement between you and the copyright holder; there
is no meeting of wills in the GPL. It is a purely unilateral concession
from the copyright holder. You cannot copy copyrighted work not because
there is contract between you and the author by which you agree not to
make copies, but because the author is given by the law an "absolute"
property right to make copies, and he may dispose of such right in any
legal way, including, but not limited to, contract.

Under the GPL the copyright holder simply notifies you that you have
permission to make copies yourself under no or some conditions. If you
do not respect the conditions, the copyright holder does not grant you
the permission to make copies, and that's all.

	A note: it might be debated whether the GPL does transfer you
	some limited nonexclusive portion of the copyright, in which
	case the question of whether it is a valid instrument for doing
	so arises (the instrument must be "in writing"; the GPL surely
	does even bear a signature).

	A further note: this might imply that you can do what you want
	with your copy, as the GPL does not restrict that, but only
	*copying*.  Well, this could mean that you could give away your
	own copy, even for money, and under any conditions whatsoever.
	This could open a (large) loophole in the GPL. It could only be
	closed by actually giving copies out with a proper contract, and
	thus asking the recipient to explicitly agree to restrictions on
	the *use* of the copy.  This cannot be done using copyright law
	only; there is an established principle that copyright holders
	cannot restrict the *use* of a copy legally obtained by a third
	party using copyright law alone.

All this means that, if copies are made outside the scope of the
permissions contained in the GPL, I reckon that the appropriate legal
action would be based on copyright infringement, not breach of contract,
because I think that there is no contract.

Instead of worrying whether the GPL's conditions could be enforced by
the copyright holder, I would seriously worry on whether the GPL's
_permissions_ could be enforced by the user, i.e.  whether the
*copyright holder* is legally bound by the GPL. E.g., would it be
possible for such permissions to be retracted? (I think not, and the FSF
will surely not, they even give you permission to choose the release of
GPL you want to apply to your case).
--
Piercarlo "Peter" Grandi           | ARPA: pcg%cs.aber.ac.uk@nsfnet-relay.ac.uk
Dept of CS, UCW Aberystwyth        | UUCP: ...!mcsun!ukc!aber-cs!pcg
Penglais, Aberystwyth SY23 3BZ, UK | INET: pcg@cs.aber.ac.uk