Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 8, 2026 23:59 UTC (Thu) by milesrout (subscriber, #126894)
In reply to: Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL? by daroc
Parent article: SFC v. VIZIO: who can enforce the GPL?

What consideration does the offeror receive in this scenario? As I understand it you're talking about this situation:

1. A offers to the world to provide the source code for product X.
2. B "accepts" the offer by doing what? Buying product X manufactured by A but not directly from A?

The problem is: what consideration has A received from X?

The classic case in English law on unilateral contracts, and I suspect but have not checked that the same general principles apply in the US, is Carlill v Carbolic Smoke Ball Company where the Smoke Ball company offered its product for sale and advertised that it could cure certain ailments. It also offered to pay a reward to anyone whose ailments weren't cured. Carlill bought the product and sued for the reward, not having been cured.

But the difference here is that B has just downloaded X. B hasn't actually bought anything from A, hasn't given any consideration. There's no contract. Now it might be different if B had bought a TV directly from the manufacturer but if B has bought the TV from their local retailer then I don't see how there is good consideration from B to A for there to be a contract.

(This post is not legal advice etc.)

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Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 8:28 UTC (Fri) by Wol (subscriber, #4433) [Link] (2 responses)

You could well be right but this doesn't sit well with me. This smells (like Carbolic :-) of early consumer protection.

Smoke Ball took the customer's money and provided a guarantee, which had nothing to do with the customer and everything to do with the product. So this case has a strong whiff of "fraud" to me - either it didn't work and Smoke Ball took money under false pretences, or it did work and the customer was trying it on.

The GPL and software licences feel very different to me. "If you do X, we will let you do Y". (And this is where lawyers earn their money because consciously intending not to do X also stinks of fraud ...).

So I think the question in the Carbolic case is did Smoke Ball make an offer they had no intention of honouring, or did they make an offer they didn't expect to be taken up.

In the Vizio case, the question is did Vizio (or someone in their supply chain) make an offer they had no intention of honouring.

And to whoever mentioned buying a house for them and their child, I don't think courts are extending contracts to "third party beneficiaries", I suspect they're just taking the attitude "a contract is a contract is a contract". Again, consumer protection comes in, because you have the gifter/giftee scenario. If I buy something and gift it to my children, they have no rights because it was a gift. If it wasn't a gift and they'd given me something they would have had rights against me. In the house example the contract said the vendor agreed to hand over the house, so the contractual recipient should be able to enforce it.

I think the question boils down to "is there a clear contractual path to someone who has reneged on their agreement?", and imho as soon as you step beyond unconditional gifts / licenses, that brings an agreement - a contract - into play. Is the licence the whole agreement, or is the licence merely the terms of a contract? Imho if the licence places conditions on the recipient, then it has to be the terms of a mutual contract. It just doesn't make legal sense to me otherwise.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 11:15 UTC (Fri) by milesrout (subscriber, #126894) [Link] (1 responses)

The case had nothing to do with consumer protection or fraud. It related to whether there was a contract. It may have entered the judicial mind that the plaintiff was a poor elderly old woman and the defendant was a company but that wasn't the reason for the decision. The reason I brought it up was to contrast it to this case where there it is not clear to me how you could argue that there's an independent contract between me and you just because you publicly make a source code offer and I "accept" it. In order for there to be a contract, there needs to be an exchange of consideration. I'm asking: what does the person to whom I was replying think the consideration is here?

I don't know why you're speculating about the reasons for the Carlill decision because they're not relevant to the point and there's no need to speculate: anyone can go and read it. It isn't about whether the company intended to honour their promise but whether the promise was legally binding as an offer to the world (or whether, as they unsuccessfully argued, offers have to made to specific persons). Subjective intention is not relevant to the law of contract.

>And to whoever mentioned buying a house for them and their child, I don't think courts are extending contracts to "third party beneficiaries", I suspect they're just taking the attitude "a contract is a contract is a contract".

When I briefly explained the principle of privity of contract, its strict implications for intended third party beneficiaries, and that it has commonly been statutorily reformed across multiple jurisdictions, I actually wasn't starting a debate or asking you to come up with ideas about what reasons you might have or have had for coming to similar decisions. I know that sounds rude, but I don't mean it that way. I just don't actually see any value in speculations about things that aren't speculative. This isn't a topic that's up for debate, it's what the legal history is.

There is no legal principle that "a contract is a contract is a contract". There is, however, a principle that only the parties to a contract can enforce it and intended third party beneficiaries are not parties to contracts and so cannot enforce it. And a long history of that principle being applied. And a recognition in society that that created unjust outcomes. And a resulting effort to reform the law to enable claims by intended third party beneficiaries of contracts.

This has nothing to do with consumer protection in the scenario I outlined. The example was not a consumer issue. And it has nothing to do with gifts. My example was an agreement where A pays B in exchange for B transferring property to A and to C. C is not a party to that contract: C has given no consideration, didn't offer anything, didn't accept anything, and does not need to have any knowledge of the contract or manifest any intention to enter into legal relations.

Of course in that scenario the vendor should not be allowed to get away with not transferring the property to C just because A doesn't want to enforce the contract, and C should have a legal right and a claim. That's why this rule has been changed in so many places. But I'm saying I'm not sure how it has changed specifically in California, so it might not be as simple as it is in some places for a third party beneficiary to make a claim.

>I think the question boils down to "is there a clear contractual path to someone who has reneged on their agreement?", and imho as soon as you step beyond unconditional gifts / licenses, that brings an agreement - a contract - into play. Is the licence the whole agreement, or is the licence merely the terms of a contract? Imho if the licence places conditions on the recipient, then it has to be the terms of a mutual contract. It just doesn't make legal sense to me otherwise.

Sometimes the law doesn't make sense to laymen. That's unfortunate but it's fine because it has to operate according to rules and those rules sometimes have consequences that are unintuitive. The question here is whether there is a contract between Vizio and the SFC or whether SFC could make a claim as a third party beneficiary of the contract. They're too quite separate questions. For the former to be the case, there needs to be consideration (which I don't see and nobody has given a satisfactory suggestion for what that consideration might be). The latter claim seems much more likely to me, both from the basic facts as outlined in the article and from the express reference to a claim as a third party in the article.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 13:21 UTC (Fri) by pizza (subscriber, #46) [Link]

> The question here is whether there is a contract between Vizio and the SFC [... ] there needs to be consideration [...]

Given that the SFC purchased a Vizio TV, there's clearly _some_ sort of consideration changing hands here.

(Ok, ok, sure, the SFC didn't purchase it directly from Vizio, so there are probably a couple of middlemen involved. But in numerous contexts, the law allows [if not requires!] these layers of indirection to be short-circuited directly back to the manufacturer. Meanwhile, if you turned the TV on and there's a click-through "contract" with Vizio's name on it, then there's clearly a direct relationship too...)

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 10:50 UTC (Fri) by tialaramex (subscriber, #21167) [Link]

Your example is confusing because it imagines a product X and then asks where X provided consideration. Products don't accept contracts and so needn't provide consideration, people do that, and so I suggest that you mean to ask what consideration A has received from B ?

English Law has a *long* history of finding some consideration where a lay person can't immediately see anything, so I don't expect that to be an obstacle here. Go read about Peppercorn rents for an example of this. Today it's even not legal to demand payment of the peppercorn because the whole point is that it's a legal fiction, you don't get an actual peppercorn. Lawyers were apparently not uncomfortable with the idea of "consideration" which doesn't exist and will never in reality be received by the other party.

So in this scenario my guess is that if obliged to find one lawyers will say something like B might improve this source code, and A can benefit from that, so that's a consideration. Did they improve it? Nobody cares, in principle they could. Did A benefit? Nobody cares, in principle they could.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 12:27 UTC (Fri) by nivedita76 (subscriber, #121790) [Link] (5 responses)

You shouldn’t need a direct purchase, otherwise how would manufacturer warranties work?

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 13:07 UTC (Fri) by farnz (subscriber, #17727) [Link]

Manufacturer warranties are not always enforceable, depending on jurisdiction. And when they are enforceable, they're not always contract terms.

In places where they're not enforceable, they are legally good-will gestures from the manufacturer to the consumer; the manufacturer chooses to do something because they believe that the cost of fixing faults is outweighed by the reputational benefit of having consumers believe that the manufacturer will fix any faults they find.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 16:06 UTC (Fri) by Wol (subscriber, #4433) [Link] (3 responses)

Many warranties only apply to the original purchaser, and require proof-of-purchase.

Many warranties are also now worthless, as being a subset of consumer protection rights (other than consumer convenience of being to able to say "this is a warranty issue", as I've had cause to do occasionally).

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 10, 2026 10:06 UTC (Sat) by nivedita76 (subscriber, #121790) [Link] (2 responses)

Well, yes, but as the “original purchaser” of, say, a Sony TV, your proof of purchase shows a payment to Best Buy or amazon or some other retailer, not Sony.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 10, 2026 12:56 UTC (Sat) by Wol (subscriber, #4433) [Link] (1 responses)

Yes.

But the legal obligations placed on Best Buy or Amazon usually trump the self-imposed guarantee from Sony. I can get my TV fixed by either. Shops will normally (I have an instance where they didn't) replace a faulty new TV on the spot. I'll never buy that brand of TV again, because apparently it was their terms with the shop that made the shop refuse to just swap :-(

If the shop doesn't replace it on the spot (after a few months, that's unlikely) they can send it back to the manufacturer, or I can, and it's a toss-up whether I take it back to the shop or send it back to the manufacturer, but it's my choice. From my PoV, I'd usually prefer the shop to take the hassle.

And on the one occasion I did have real trouble, I simply said to the shop assistant (John Lewis, of all places !!!) "You're in effect charging me for a warranty repair - you need to go and speak to a manager!" (My phone had broken, and the only offer he would make was refund the sale price and expect me to buy a new one full price. The law says repair/refund/replace whatever is acceptable to ME. And having to pay for a replacement was NOT acceptable. :-)

And if I give the TV as a present the manufacturer guarantee is worthless to the recipient. The shop guarantee MAY transfer to the giftee.

Cheers,
Wol

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 11, 2026 2:04 UTC (Sun) by milesrout (subscriber, #126894) [Link]

This is a separate issue. The reason we have consumer law is that the common law didn't cover these scenarios. So if you bought something from a retailer, you only had rights in contract with the retailer, and generally most of the rights you might expect to have could be contracted out of. If you wanted to make a claim against the manufacturer it would need to be something like a claim in negligence, which was much harder to establish.

In New Zealand, consumer warranties can always be pursued against both retailer and manufacturer, except for a few specific warranties which are only available against the retailer. And it covers gifts as well. They're not contractual rights but statutory rights and it's covered specifically in the Act. But this is just a matter of statute - it has really nothing to do with contract law.

Is the contract restricted to the buyers, or to the "any 3rd party" of the GPL?

Posted Jan 9, 2026 14:14 UTC (Fri) by daroc (editor, #160859) [Link]

I'm not fully certain what the consideration in question is, actually. The judge's tentative ruling doesn't spell that out, but it does say:

Therefore, Plaintiff adequately stated a basis for its contract argument in its FAC and discovery responses.

... so I'm not sure, but the judge seems to think that a contract could exist here, presumably for reasons that are obvious to a member of California bar but that are not obvious to me.