A GPL-enforcement suit against VMware

Posted Mar 10, 2015 3:45 UTC (Tue) by Cyberax (✭ supporter ✭, #52523)
In reply to: A GPL-enforcement suit against VMware by dlang
Parent article: A GPL-enforcement suit against VMware

The company is definitely aware of the contract - it wrote it in the first place!

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 4:30 UTC (Tue) by dlang (guest, #313) [Link] (8 responses)

The question isn't if they are aware of the contract, the question is if they are aware of the other party in the contract.

A GPL-enforcement suit against VMware

Posted Mar 10, 2015 7:28 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (7 responses)

> The question isn't if they are aware of the contract, the question is if they are aware of the other party in the contract.
Clickwrap/shrinkwrap contracts are a bit special. The manufacturer agrees to fulfill their duties beforehand, no matter who accepts the contract.

But otherwise there's no real difference. There are (at least) two parties to the contract (the manufacturer's acceptance and knowledge is implied) and the act of agreeing to it is legally significant.

Now imagine that we replace a GPL license with a contract for the Linux project:
1) We would need a corporate entity to issue the contracts.

2) We'll have to harden this entity from a hostile takeover. This is not a trivial issue, even carefully written bylaws can be worked around if a malicious entity gains control.

3) If we make a mistake in the contract or bylaws it's possible that ALL contracts may be voided and ALL users will have to stop using Linux.

4) Contributing to the project would require acceptance of the contract. Many countries (Russia) explicitly forbid legal entities to enter contracts that do not require a payment.

5) Many countries have complicated laws about international contracts.

6) While we can grant the downstream users a right to act on the behalf of the legal owning entity, they won't be able to issue contracts in their name.

Perhaps, it's possible to work around these issues. But I have a feeling that one would simply replicate the copyright laws.

A GPL-enforcement suit against VMware

Posted Mar 14, 2015 21:49 UTC (Sat) by Max.Hyre (subscriber, #1054) [Link] (6 responses)

Many countries (Russia) explicitly forbid legal entities to enter contracts that do not require a payment.

Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 1:45 UTC (Sun) by pizza (subscriber, #46) [Link] (4 responses)

> Could the U.S. be such a country? Hence the famous “for one dollar and other considerations” clause.

No, that's just a legal nod-nod-wink-wink to get around paying more taxes than necessary on $VeryBigPurchases. Eg a house.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 2:32 UTC (Sun) by vonbrand (subscriber, #4458) [Link]

Around here, selling something for substantially less than the "real value" will get you into hot water with the tax authority...

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 4:19 UTC (Sun) by bronson (subscriber, #4806) [Link] (2 responses)

I don't think that's true. The US requires consideration for a contract to be valid (in most cases, IANAL) so, yes, some contracts tried to make themselves enforceable by exchanging something silly. In the past this tended to work since the court interpreted it as meeting the letter of the law. In recent decades they've been taking a more subjective view (IMO rightfully so) so you probably won't see contracts like that written nowadays.

http://en.wikipedia.org/wiki/Consideration_under_American...

Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 12:44 UTC (Sun) by pizza (subscriber, #46) [Link] (1 responses)

> Declaring that a house sold for a dollar doesn't sound like a very effective way to get around taxes... Can't see my municipality falling for it anyway.

IANAL, but I have been through this a couple of times.

It's not the sale of the house per se (and the property taxes you pay depend on "fair market valuation") but rather it's the recording of the property deed at the time of sale. The two times I've dealt with that (in two different states) the deed was for "$1 and other considerations" to avoid having to pay several thousand extra dollars for what basically amounts to a title transfer.

I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.

Now on a car registration (in Florida, anyway) the actual sales price on the bill of sale is used to compute sales tax at time of registration. There are no yearly ad valorem taxes on the car itself, but the fees are based on the vehicle type and weight. Once the state gets its initial cut, they no longer care what the car's technically worth.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 22:56 UTC (Sun) by Cyberax (✭ supporter ✭, #52523) [Link]

> I think that legal fiction is because I didn't technically pay the seller $300,000 -- rather, the mortgage company paid $299,999 and I paid $1 -- ie "other considerations" the seller received from a third party. Of course, I have to pay the mortgage company back plus interest, but the only direct payment from the buyer to the seller was that $1.
In Russia this is explicitly not allowed. In this situation, the mortgage company pays you $300000 and then you pay the seller. Of course, there are certain legal constructs to make this process to be atomic (so you won't be left with $300000 on your account and without a house, for example).

Anyway, this is getting a bit too far from the point - contract law is not suitable to replace licenses.

A GPL-enforcement suit against VMware

Posted Mar 15, 2015 19:06 UTC (Sun) by smurf (subscriber, #17840) [Link]

In Germany, as a legal entity you definitely must (expect to) benefit from any contract you enter into. You can't just give away some asset (unless the other party is the owner, or the asset is written off completely, or the recipient is a tax-exempt charity, or …).

There's no actual law against it, but representing a corporation you're expected to act in its benefit and, economically speaking, giving stuff to random people is not.