Not So Simple [LWN.net]

Not So Simple

Posted Dec 4, 2003 5:47 UTC (Thu) by ncm (subscriber, #165)
In reply to: Wrong by spitzak
Parent article: The GPL Is a License, not a Contract

While nothing forces a licensee to return something of value, once having returned something of value, the licensee can claim to have executed an agreement. It doesn't matter much how you, personally, or Mr. O'Riordan, or the revered PJ, or even Prof. Moglen feel about it. What matters is what makes sense to the judge(s) involved. Judges, as a rule, like to bring in contract case law. Often that was where they worked before they became judges.

There's hardly any human interaction that can't be turned into a contract, once you get to court, just as there's hardly a noun that can't be verbed.

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Not So Simple

Posted Dec 4, 2003 7:13 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

While nothing forces a licensee to return something of value, once having returned something of value, the licensee can claim to have executed an agreement.

No, because the licensor is not under any obligation to accept any return of something of value, or to admit that the licensee has even provided anything of value. The licensor thus cannot unilaterally turn the license into a contract.

If I tell you that you can swim in my swimming pool on Thursdays, I've granted you a license. You can't turn it into a contract by dumping some chlorine into the pool and claiming that you've returned something of value.

Not So Simple

Posted Dec 4, 2003 7:16 UTC (Thu) by brouhaha (subscriber, #1698) [Link]

I wrote:

The licensor thus cannot unilaterally turn the license into a contract.

That's true, but I meant to write that the licensee cannot unilaterally turn the license into a contract.

Not So Simple

Posted Dec 7, 2003 23:45 UTC (Sun) by ncm (subscriber, #165) [Link]

This seems to contradict the above:

§45. OPTION CONTRACT CREATED BY PART PERFORMANCE OR TENDER
(1) Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree begins the invited performance or tenders a beginning of it.
(2) The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance in accordance with the terms of the offer.
Comments: a. Offer limited to acceptance by performance only. This Section is limited to cases where the offer does not invite a promissory acceptance. Such an offer has often been referred to as an "offer for a unilateral contract" .

(Thanks to gumout.)

Not So Simple

Posted Dec 8, 2003 5:28 UTC (Mon) by ncm (subscriber, #165) [Link]

Also, see

http://www.idea.piercelaw.edu/articles/33/33_2/p225.Jones.pdf