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The GPL and contract rescission

From: rjack
Subject: The GPL and contract rescission
Date: Wed, 26 Sep 2007 10:15:26 -0400
User-agent: Thunderbird (Windows/20070728)

The original licensors of GPL’d BusyBox software have no standing to sue for material breach of the GPL license.

The SFLC complaint drafted against Monsoon Media claims in part:

“8. Under the License, Plaintiffs grant certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each licensee, states:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”

A careful review of the GPL license reveals that the intended beneficiaries are “all third parties” [sec. 2(b)] – not the original licensor(s). The complaint asks rescission of the license based on copies of the source code not being made available to potential recipients (“all third parties”).

In the Monsoon case, in order to claim rescission of the GPL the original licensors are basing their standing to do so on the basis an injury to “all third parties” such that they do not receive source code. The licensors in their own persons have suffered no “injury in fact” in order to confer standing to sue for breach of contract and rescission. Only the (unidentified) injured third party beneficiaries may sue for the failure to make source code available.

"Standing" means that a plaintiff has a personal stake in the outcome of a dispute sufficient to obtain judicial resolution of that controversy. The concept focuses on whether the litigant is the proper party to fight the lawsuit, and requires the plaintiff to be injured or have been threatened with injury. In other words, no party is entitled to argue an action unless he himself is adversely affected by it. BLACK'S LAW DICTIONARY, 1413 (7th ed. 1999).

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