FSF's Star Turn in the Android FUDathon (LinuxInsider)

Posted Sep 14, 2011 11:35 UTC (Wed) by etienne (guest, #25256)
In reply to: FSF's Star Turn in the Android FUDathon (LinuxInsider) by guest
Parent article: FSF's Star Turn in the Android FUDathon (LinuxInsider)

I do understand what you are saying, in the context of a contract:

> Consider the following license:
> "Provided that you paypal me ten dollars you can make no more than
> ten copies for the price of ten dollars per copy."

That is for me a clear contract, the parties are defined and the agreement date is clear.

Now assume that my Rolce Royce classic car (I wish) was stolen from a public car park, and the person who did it was found.
Can that person claim in front of the court that I decided freely to park in a public car park, so that I made a contract with anybody walking in the car park to allow them to look at my car - and the fact that he took the car away is a simple breach of that contract?
I think I would claim that there was no such contract, just maybe an implied license to look at the car.

In fact, I do not see when the contract (you are talking about) is created when someone put a GPL file on a fileserver and an unknown person later download that file.

FSF's Star Turn in the Android FUDathon (LinuxInsider)

Posted Sep 14, 2011 14:01 UTC (Wed) by guest (guest, #2027) [Link] (3 responses)

The act of downloading as such does not create a contract relationship, see

http://news.findlaw.com/cnn/docs/specht/specht70301ord.pdf

OTOH any act of exercising copyright right(s) granted by the license is a product of license contract: please do not confuse IP licenses with non-contract governmental permits such as gun dealer/fisher/driver licensees, etc...

FSF's Star Turn in the Android FUDathon (LinuxInsider)

Posted Sep 14, 2011 14:53 UTC (Wed) by etienne (guest, #25256) [Link] (2 responses)

> any act of exercising copyright right(s) granted by the license
> is a product of license contract.

I would still understand that, but in most case the people selling non GPL compliant products never had any copyright right(s) because they obviously refused the conditions of the license from the beginning.

To go back to your example, you say on Internet:
"Provided that you paypal me ten dollars you can make no more than ten copies for the price of ten dollars per copy."
Then I do not tell you anything, and sell hundreds of copies for one hundred dollards each.
There is no contract, there is no license, there is nothing.

What happens then in front of the court?

FSF's Star Turn in the Android FUDathon (LinuxInsider)

Posted Sep 14, 2011 16:10 UTC (Wed) by guest (guest, #2027) [Link] (1 responses)

Failure to paypal initial ten dollars (condition precedent) means that there was no license granted and the court would recognize copyright infringement (tort instead of breach of contract). But once again, please keep in mind that

condition precedent
scope-of-use limitation
consideration (covenant(s) in exchange to the license grant(s))

are different concepts and FOSS licenses totally lack conditions precedent and scope-of-use limitations (they are full of non-monetary consideration).

FSF's Star Turn in the Android FUDathon (LinuxInsider)

Posted Sep 15, 2011 8:55 UTC (Thu) by etienne (guest, #25256) [Link]

One of the pre-condition you are looking for may be in the license of the GPL (version 2 at least) text itself.
The text of the GPL is obviously not under the GPL license, you are not allowed to modify it.
The beginning of the GPL text tells you when you are allowed to copy that text.
You need the right to copy the GPL text to become a licensor because you need to include a copy of that text with the software package you license to your users.
To become a licensee you probably also need to have the right to copy that text because it is part of the package you copy (i.e. install) on your computer.
Now the question is, what does it mean to lose the right to use the GPL after an infringement?
Do the infringer loose the right to copy the GPL text itself?
That is what I was thinking at the beginning, I am no more sure.

Please note that I am using the term "pre-condition" and not "condition precedent" because I am still not sure a contract can be established when the licensor has no way to know two things: the identity of the licensee and the date of the beginning of the contract.