In the case of the GPL an original "preexisting" author A prepares (authorizes) modification of his "preexisting" work and grants permission to distribute his "preexisting" work. Author B accepts these permissions granted by the GPL and modifies the "preexisting" work. This is now a "derivative work".
Author A and Author B are in contractual "privity". Author A approached Author B with a GPL license and Author B said to Author A, "I accept the GPL and agree to its terms." There was a "meeting of the minds" so Author A and Author B are in "privity"... they are not strangers to each other (in the legal sense).
Author B now has all the permissions required to copy
(distribute) the derivative work and he does so. This is a
perfectly valid contract except for one problem... it
requires modifying Author B to distribute the derivative
work with the condition added that:
"b) You must cause any work that you distribute or
publish, that in whole or in part contains or is derived
from the Program or any part thereof, to be licensed as a
whole at no charge to all third parties under the terms of
this License."
So Author B approaches Author C with a GPL license and the derivative work created by Author A and Author B above. Author C says to Author B, "I accept the GPL and agree to its terms." There was a "meeting of the minds" so Author B and Author C are in "privity"... they are not strangers to each other (in the legal sense).
Now Author A and Author C are *not* in privity. Author B approached Author C. Author A and Author C are legal strangers since there was no "meeting of the minds". Author A is in privity with Author B and Author B is in privity with Author C but Author A and Author C remain legal strangers.
Now Author C creates a derivative work and goes out and violates the GPL by attempting to charge for a license.
Author A says to Author C you're infringing on my copyrights in my original "preexisting work. You must live up to the terms of the GPL license which I originally used to grant permission... but unfortunately Author A and Author C are, in the legal sense, total strangers.
Author A has created a marvelous new contract license for his work that binds not only to Author B, who is in privity with Author A, but also binds parties who are legal strangers to Author A, such as Author C.
Now look at:
"In ProCD, for example, the court found that the mutual assent and consideration required by a contract claim render that claim qualitatively different from copyright infringement. 86 F.3d at 1454. Consistent with Data General's reliance on a contract element, the court in ProCD reasoned: 'A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create exclusive rights.' Id. Indeed, the Supreme Court recently noted: '[i]t goes without saying that a contract cannot bind a nonparty.' EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 (2002). This court believes that the First Circuit would follow the reasoning of ProCD and the majority of other courts to consider this issue." --- Bowers v. Baystate Technologies Inc., 64 USPQ2d 1065 (CA FC 2002)
See the Supreme Court citation "[i]t goes without saying that a contract cannot bind a nonparty."?
This citation alone implies that as a contract the GPL contains an invalid term. That term is the requirement that your redistribute using the GPL. Were that term binding, it would establish a new "right against the world" by abolishing requirements of privity in contract law.
This is what confounds analysis of the GPL. It's a perfectly innocent looking contract until the redistribution term attempts to abolish the privity requirement of contract law.
Since the GPL contains a term that purports to abolish "privity" requirements for third parties, it may be ruled invalid as a contract before the court ever proceeds to the stage of examination under section 301 preemption.
-- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
