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Making kernel license upgradeable

Making kernel license upgradeable

Posted Oct 21, 2004 16:14 UTC (Thu) by giraffedata (subscriber, #1954)
In reply to: Making kernel license upgradeable by Wol
Parent article: Buying the kernel

Let's say I buy your house and give you 100K for it. I then go bankrupt and the mortgagor repossess it. You'd scream blue murder if the mortgagor then proceeded also to reclaim the 100K I gave you for it - you've lost the house, and you've lost what was paid for it!

You got your example backwards. To be analogous to the FSF copyright assignment case, it would be: Instead of giving me 100K for my house, you promise to pay me 100K next year -- and without a security agreement (i.e. collateral, e.g. mortgage). The bank (who is btw the mortgagee, not the mortgagor) repossesses and I then try to get my 100K from the bank. I will not succeed. If you're broke, I've lost my 100K and my house.

If the contract by which the FSF purchased the copyrights has covenants

The only kind of property I've ever heard of with the ability to have a convenant run with the title is real property. In a contract, a "covenant" is nothing but a promise from one person to another and exists independent of any property whose transfer might also be part of the contract.

There is a special case (isn't there always) where there is an automatic "purchase money lien," but that doesn't apply here.

the successor-in-interest has reneged on the original price.

He can renege only if he was obligated to pay the price in the first place, which I say he wasn't. Successor in interest is a fairly recent invention in law, which means it is applied inconsistently from one jurisdiction and circumstance to the next. For example, in California if you buy most of the assets of a business and continue to operate it as essentially the same business, you become liable for the seller's unpaid sales tax under a successor in interest law. But it definitely doesn't say that any time property changes hands, it's an assignment of all the contracts of sale under which it previously changed hands.

That's why people execute security agreements (liens) and file them in a public office when they sell property. Then a subsequent transferee has a chance to know he might owe some 3rd party additional money for the property (not really -- he still doesn't assume any obligations -- he just might have to hand over the property). Without it, the 1st party has no claim against the 3rd.

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