On Thu, 13 Jan 2005 07:46:18 -0500, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Michael Edwards wrote: > >Sorry, I'll try to be clearer. Even if the return performance is > >impossible without exercising rights only available under the license, > >it's still performance. > Right, this was the very specific question we were getting to. :-) > > In determining the DFSG-freeness of a license, we seem to have decided > essentially that requiring action or forbearance regarding activities > outside the scope of the rights granted in the license renders a license > non-free. Of course, that has nothing to do with whether other requirements > (dependent on the license) are consideration under the law!
That makes perfect sense. That's the interpretation that makes GPL v2 DFSG-free, which is of course the right outcome, without misinterpreting its legal nature. [snip] > Couldn't find [Mattei] immediately; I hope to eventually. > The description in the syllabus is > "Rule: a promise that is conditional on the promisor's satisfaction with a > related matter is enforceable." > Unfortunately, I don't quite grok what "the promisor's satisfaction with a > related matter" means! It sounds like it refers to the kind of question > we're discussing here though. If it does, that would be the case answering > the question which started the thread. :-) This means that the person on the other end of the contract (promisee) can't succeed on a claim that the contract is invalid because the promisor's obligation (an otherwise valid promise made conditional) is too weak. The factual situation in Mattei was that A agreed to sell some land to B, and B agreed to buy conditional on B succeeding in finding lessees for the building B intended to build. When B came back and said "OK, we've found enough lessees and we want to go forward with the purchase," A tried to back out, and claimed that the contract was no good because B had reserved the right to back out at B's discretion. The court ruled in favor of B, saying that B's "conditional promise" was sufficient consideration to bind A to the agreed contract terms. [An abridged Mattei opinion is available at http://www.scu.edu/law/FacWebPage/Neustadter/e-books/abridged/main/cases/mattei.htm ] [snip] > I think that the reliance of the recipients of the GPL-licensed works on > the license is likely to be useful in proving that there is an > enforceable contract. That's probably also a valid argument, but I don't think it's needed, and I expect that standards of reliance vary more from jurisdiction to jurisdiction and are harder to demonstrate in the context of a preliminary injunction proceeding (IANAL). > This was also interesting: > >The performance or return promise may be given to the promisor or to some > >other person. It may be given by the promisee or by some other person > > This tends to indicate that the licensing requirements given by the GPL > -- and, indeed, the notice requirements in the BSD license -- can constitute > consideration even though they are not given directly to the licensor. I think that statement has mostly to do with consideration that comes from one of the main parties' agents-in-fact (e. g., I authorize my insurance company to give you an annuity if you waive the right to sue me for your injury) rather than the less common case of an unrelated third-party beneficiary. > Various stuff also links in interestingly to what you say here: > >For what it's worth, the case law I've read (I don't have Nimmer or > >the like handy) points out that a "copyright license" is really just > >an enforceable promise not to pursue an infringement claim under > >certain circumstances. > > I guess I'm convinced. :-) That the GPL is legally an offer of contract? If so, it's good to know that the substance of my argument is persuasive to at least one person besides myself. :-) Cheers, - Michael
