Aiming at the GPL? [LWN.net]

Aiming at the GPL?

Posted Aug 22, 2003 9:27 UTC (Fri) by brouhaha (subscriber, #1698)
In reply to: Aiming at the GPL? by ksmathers
Parent article: Aiming at the GPL?

Certainly the GPL is not a contract, exactly because of the meeting of minds problem. However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing", or "We can ignore the GPL because it isn't a contract". After all, if they decide they didn't accept the GPL for their Linux distribution, then they (SCO) could be found to have infringed the Linux kernel copyrights (not to mention other GPL'd software in their distribution) tens or hundreds of thousands of times. The statutory damages alone for that could rival the billions of dollars in damages they're asking from IBM. If actual and punitive damages were also added...

No, the GPL isn't a contract. But it doesn't need to be.

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meeting of the minds

Posted Aug 22, 2003 15:59 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

Why is there certainly no meeting of the minds?

It looks to me like there's as much meeting of the minds as with any other public (unilateral) contract, and GPL probably meets all the tests of being a legal contract.

meeting of the minds

Posted Aug 22, 2003 18:50 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

Why is there certainly no meeting of the minds?

Because for a contract to be valid, both parties have to receive something of value. With the GPL, the licensee fairly clearly gets something of value, the right to copy the code, but the licensor's value (if any) is very abstract and probably not legally sufficient to make the contract enforceable.

However, it doesn't NEED to be an enforceable contract per se. It works fine as a conditional grant of rights. No one can be forced to accept it, but if they don't accept it, they don't get any right to redistribute the GPL'd code.

Disclaimer: IANAL.

Aiming at the GPL?

Posted Aug 22, 2003 16:35 UTC (Fri) by ksmathers (subscriber, #2353) [Link]

[...] However, no one is required to accept the GPL. SCO deliberately chose to accept the GPL and distribute software under those terms. [...] No, the GPL isn't a contract. But it doesn't need to be.

The GPL is a license. Licenses are a subtype of contract. There is no other legal theory for interpreting the GPL than contract law. If the GPL is not a contract then it is legally meaningless.

It can be argued that there was a meeting of minds, or as you put it yourself: I rather doubt that a court will let them get away with saying "Oops, we didn't know what we were doing" [...]. There are legal reasons that have been established typically for centuries, for judging whether there has been a meeting of minds, and accepting consideration is one of those, and GPL can be argued to offer a form of consideration.

But conversely, SCO may have a good argument that they received nothing of considerable value in exchange for their code (due to their unique position as owner of the UNIX assets), and therefor that they must not be held to have effectively released their code under GPL license.

SCO also has a second argument in that they may not have been aware that they were releasing their own code until they found it in the Linux source. If that is the case, then they can also ask that the GPL be invalidated on the basis that there was never an intention to release that code under GPL, but that may be difficult to argue since presumptively they would assume to be aware of the content of products that they release. If SCO does get a court to agree that there was not a contract on this basis, it will probably be because of the precedent set in an 1887 dispute involving an unexpectedly pregnant cow.

A good description of the problems for SCO in the second argument is given in this C-Net article.