DJA wrote:
Daniel Wallace already tried something like that in his antitrust suit -
which was literally laughed out of court (and where he was told that if
he pursued that course again, he and his lawyer (himself) would be
sanctioned.
Looking at the case here:
http://www.groklaw.net/article.php?story=20060320201540127
This isn't a substantive ruling about terms of the GPL. Wallace didn't
even get to the point of arguing. So the judge threw out the whole case
since anti-trust offense was never shown.
In fact, it *still* isn't clear whether the GPL is a license (which can
be revoked) or is a contract (which cannot be revoked).
Quoting: http://www.fsf.org/news/wallace-vs-fsf
Peter Brown, FSF Executive Director:
"The GPL is a software license, it is not a contract. It gives
permissions from the copyright holder. You don't want to accept those
permissions? End of discussion."
I don't see where that comes out of this ruling. In fact, the judge
explicitly cited a reference which tends toward the side of the GPL is a
contract:
Quoting Groklaw:
"The judge in this ruling cites "Jason B. Wacha, Taking the Case: Is the
GPL Enforceable, 21 Santa Clara Computer & High Tech L.J. 451, 487
(2005)." Expanding that, that's the Santa Clara Computer and High Tech
Law Journal, volume 21 (published in 2005), starting at page 451. It
looks like copies are available from my university library connection;
it may be possible to find a copy at a large public library as well."
...
"Mr. Wacha claims that, because the GPL imposes obligations on the
licensee, which they accept by distributing or modifying the licensed
software, it is effectively a contract, and should be treated as such.
(He also notes that a "conditional license" -- that is, one which can be
revoked based on certain conditions -- is in general effectively a
contract.)"
...
"Back to the "Is the GPL a valid contract?" question, he notes that
there is legal precedent for the idea that contracts can be accepted by
one's actions, and that exchange of "something of value" does not only
mean money, and can almost certainly include the licensee's promise to
abide by the terms of the GPL. (In addition, the distinction between
license and contract is apparently something of some peculiarity to U.S.
law; German law, for instance, does not have such a distinction, and the
GPL was considered to be a contract in Welte v. Sitecom.)"
The judge didn't need to make the decision as to whether the GPL is a
license or a contract, so he didn't. Consequently, the issue is still
not resolved.
-a
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