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Re: Help to pick a license for my free source code project

From: mike3
Subject: Re: Help to pick a license for my free source code project
Date: Tue, 16 Oct 2007 14:12:37 -0700
User-agent: G2/1.0

On Oct 15, 5:42 pm, rjack <rjack@com> wrote:
> Rui Miguel Silva Seabra wrote:
> > Sorry, but Eben Moglen has been in courts about the GPL, and virtually
> > all cases have been settled, with the infringing party agreeing to
> > comply or desist.
> > Rui
> Eben first says:
> "If you sell someone a book she has a right to give it to
> whomever she pleases. That's the first-sale rule. But the donee
> of the book may not copy it and give away copies. You can enforce
> your copyright against that donee, even though you are not in any
> contractual privity. . ."
> This is *true*.
> Eben then further states:
> "In the case of the GPL, no one is bound to anything in
> particular unless she redistributes the software, modified or
> unmodified."
> This is *not* true. No one can be bound by the GPL whether
> distribution occurs or not -- because a contract cannot bind
> "all third parties" as the GPL's sec. 2(b) purports to require. See:

But when you use the software, redistribute the software,
you are *becoming a party* in the contract. If a contract
could not bind the parties *within* it, it would be utterly

> "It goes without saying that a contract cannot bind a nonparty.";
> Equal Employment Opportunity Comm'n v. Waffle House, Inc. 122
> S.Ct. 754, 764 (2002)
> Who ya' gonna' believe. . . the United States Supreme Court
> or Eben Moglen?

I'd take the US Supreme Court, and what it says is totally
irrelevant to what you are talking about since the
redistributor, by choosing to exercise the granted
permissions in the GPL, has become a party -- they
are NO LONGER a "nonparty", so the USSC's statement
above is 100% inapplicable.

What is the GPL? The GPL is a grant of permissions that the
recipient of the software would not otherwise have. By law, the
redistribution is illegal, period, unless the author(s) grant
permission to do it (although then again there are those "fair use"
areas, which is muddy.) That is what the GPL does -- it grants
permission to redistribute it, provided certain conditions are met.
If one does not abide by those conditions, the permissions
do not apply, and therefore one is once again under the
law's prohibition and cannot legally redistribute.

Of course I might be wrong on all this, but it seems
for now that GPL _is_ a real agreement.

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