Thufir Hawat wrote:
On Fri, 03 Apr 2009 07:44:43 -0400, Rjack wrote:
The Free Software Foundation has *never* advanced a legal
argument to refute the fact that the GPL is contractually
unenforceable and preempted by the Copyright Act.
What's your argument that isn't enforceable?
The GPL is unequivocally a contract under U.S. law. (More
specifically it is a contract for a "grant of permission" or
license.)
Section 2(b) 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."
To summarize, this means the GPL is a contract to requiring that:
1) "you must cause"
2) "any work to be licensed as a whole"
3) "to all third parties"
4) "under the terms of this License"
Therefore the *distributor* of GPL licensed code must cause a new
contract to be formed between himself and the members of the
general public that covers the created derivative work "as a
whole".
The GPL is a 'contract to make a contract' with the general public
to distribute a derivative work. The GPL is therefore a "contract
to make a contract". So. . . how is a contract between two parties
to make a *new* contract with a *yet to be identified* third party
for a *yet to be created* "derivative of a derivative" work going
to be enforced?
The short answer is it can't be enforced. See:
"[A] contract to make a contract is enforceable only where all
material terms have been agreed upon. 1 Corbin, Contracts, sec.
2.8, at 131, 133-34 (Perillo ed. 1993). Prisma Zona's own
statements, and the service contract drafts which it attaches, show
that material issues were still open."; Prisma Zona Exploratoria
de Puerto Rico, Inc. v. Calderón 310 F.3d 1 (1st Cir. 2002).
"Under Michigan law, "[t]o be enforceable, a contract to enter into
a future contract must specify all its material and essential
terms and leave none to be agreed upon as the result of future
negotiations." Socony-Vacuum Oil Co., Inc. v. Waldo, 286 N.W. 630,
632 (Mich. 1939)”
“To constitute a valid contract, the parties must assent to the
same thing in the same sense, and their minds must meet as to all
the terms. If any portion of the proposed terms is not settled, or
no mode agreed on by which they may be settled, there is no
agreement. Gregory v. Perdue, Inc., 47 N.C. App. 655, 657, 267
S.E.2d 584, 586 (1980). . . A "'contract to make a contract'" is
not an enforceable agreement. Northington v. Michelotti, 121 N.C.
App. 180, 184, 464 S.E.2d 711, 714 (1995)(quoting 1 Joseph M.
Perillo, Corbin on Contracts, §2.8(a)(revised edition 1993))."
Wilkerson v. Carriage Park Development Corp., 130 NC App 475
(08/04/1998 97-1387)
"‘If the document or contract that the parties agree to make is to
contain any material term that is not already agreed on, no
contract has yet been made; and the so called "contract to make a
contract" is not a contract at all.’" Hansen v. Catsman, 123 N.W.2d
265, 266 (Mich. 1963).