Branden Robinson <[EMAIL PROTECTED]> writes: > How isn't it? The above statement in writing is no different in meaning > or intent from saying "no thanks" when the person handing you a binary > of GCC also offers you the source code. It's just a lot more > formalized.
Courts are more than able to distinguish between: John offers Peter something, and Peter says "no thanks". John pretends to offer Peter something, and Peter has to say "no thanks", or else John won't do some nice thing for Peter. It's not a "bright line" test, but it doesn't need to be. Few things in law are. You look at whether John's offer was genuine. You look whether Peter had a plausible independent motivation for saying "no thanks". You look at what Peter says after the fact. There are all kinds of things here; all of which can provide evidence for the nature of the transaction. If John says: "I will give you this GPLd program only on condition that you say you don't need the source", then we will look at what Peter does when he says "ok, I don't need the source"--then that's not OK. But if Peter were going to refuse the source regardless; if Peter already has the source or knows how to get it; then we are likely to think that John was not in fact creating a condition.
