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Re: Microsoft needs a help strategy

From: David Kastrup
Subject: Re: Microsoft needs a help strategy
Date: Thu, 29 Jan 2009 23:40:09 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

ZnU <znu@fake.invalid> writes:

> In article <8563jzm30h.fsf@lola.goethe.zz>, David Kastrup <> 
> wrote:
>> Uh no.  If a provision of the kind "you may freely redistribute if 
>> you heed the following conditions" is not legally valid, and you have 
>> no other right to freely redistribute without that provision (and 
>> copyright law does not give you such a right), then you may not 
>> freely redistribute, period. So there is no defendant with a 
>> substantial interest in such a finding.
>> Defendant has nothing to gain by asking the court to decide that his 
>> conditional permission is not legally valid.
> This argument would be persuasive if judges were the legal equivalent
> of strictly-validating XML parsers, required to reject entire
> documents if portions of them were invalid). But this is not, in fact,
> the case.
> While I don't consider this outcome particularly likely, there is
> absolutely no reason why a judge couldn't, in principle, find that GPL
> validly granted permission to redistribute, but that (say) the
> provision requiring code disclosure for derivative works was invalid.

We are not talking about a two-sided contract with an exchange of
consideration, but a unilateral grant.  The recipient is free to take it
or leave it.  There is no prejudice to him if he can't meet some terms
and consequently has no rights to make use of the grant.

>> The GPL is not a shrink-wrap contract like the EULAs.  Acceptance of
>> the GPL is optional for default software use.
> And whether this matters with respect to its legal enforcability is one 
> of many unaswered questions about EULAs.

No concern of the GPL.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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