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Re: GPL question

From: rjack
Subject: Re: GPL question
Date: Fri, 19 Oct 2007 09:35:39 -0400
User-agent: Thunderbird (Windows/20070728)

Alexander Terekhov wrote:
rjack wrote:
Alexander Terekhov wrote:

I hope than Monsoon folks will take an opportunity to trash Moglen's nonsensical GNU legal theory myths in federal court.

The GPL myth gives rise to another problem.

That problem is "legal standing". A license such as the GPL contains terms that direct "designated third party beneficiaries". The GPL's term 2(b) demands:

b) 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.

Any consideration flowing from the GPL is assigned to "all third parties". This consideration is certainly sufficient under contract law to form a valid contract:

“In addition, under contract law, a contract is supported by consideration even if the consideration flows solely to a third party. See Mencher v. Weiss, 114 N.E.2d at 181(“[I]t is fundamental that a benefit flowing to a third person or legal entity constitutes a sufficient consideration for the promise of another.”); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e (1981) (“It matters not from whom the consideration moves or to whom it goes. If it is bargained for and given in exchange for the promise, the promise is not gratuitous.”); see generally 3 WILLISTON § 7:5, at 60 (“It is well settled that a detriment suffered by the promisee at the promisor’s request and as the price for the promise is sufficient, despite the fact that the promisor is not benefited as well.”); In re: Asia Global Crossing, Ltd., et al. 322 B.R. 247 (Bankr. S.D.N.Y., March 21, 2005).

There is a fundamental principle underlying all actions in federal courts:

“Standing doctrine delimits federal jurisdiction to, among other things, cases involving real injuries to plaintiffs, the so-called "injury-in-fact" requirement.”; Brooklyn Legal Services Corp. v. Legal Services Corp., 462 F.3d 219 (Second Cir. 2006).

Although the copyright owners filed the action in federal court in the Monsoon case they have suffered no "injury in fact" from the claimed breach of the GPL -- which is stated in the complaint as failure to provide access to the work's source code under sec. 2(b) requirements. As we have seen, sec. 2(b) requires access to source code be provided to "all third parties" and not the original licensor. In the legal arena you can't claim damages from some else's injuries. A plaintiff must suffer a personal "injury in fact" before he has standing in court. In the United States designated third party beneficiaries have standing to sue in their own right.

"The "irreducible constitutional minimum of standing contains three elements": "[T]he plaintiff must have suffered an injury in fact," "there must be a causal connection between the injury and the conduct complained of, " and "it must be likely . . . that the injury will be redressed by a favorable decision." Id. At 560-61 (internal quotations omitted).(5) The plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing these elements. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998). Failure to establish any one deprives the federal courts of jurisdiction to hear the suit.; Elizabeth Rivera v. Wyeth-Ayerst Laboratories (01-40122) (5th Cir. 2002)

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