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| Authored by: Anonymous on Wednesday, June 12 2013 @ 09:36 PM EDT |
Repeating that "the GPL is a licence" does not make it so.
Even if it *were* true in the US, it is most likely patently false elsewhere in
the world. I believe you have taken Prof. Moglen's oversimplification to heart,
but I don't believe that that oversimplification is a useful one.
First, there is the fact that the GPL is a *document*, and so cannot, by
definition, be a licence. At best it could be a writing that memorializes the
existence of a licence. A licence is a *right*, and as such can not exist in
tangible form such as a document.
Second, if you apply even the most basic contractual analysis (think first year
law school), this writing is clearly a unilateral contract. The three required
elements of a contract are there: offer, acceptance, and consideration, even if
you consider them implicit (arguable). The fourth (and sometimes disputed)
requirement, consensus ad idem, is also implicit, and may not be necessary at
all, especially in the case of unilateral contracts) depending on the
jurisdiction.
Sorry I don't have the time to quote the Restatement on this or dig up the case
law right now, but if you're interested I could probably do so in a couple of
weeks.
Everyone with a law degree understands that when Prof. Moglen says that the GPL
is a licence and not a contract (does he even still say this?) he is making an
oversimplification. I think that he does everyone who does not have a law
degree a disservice by doing so, and you perpetuate that disservice when you
repeat it, even if your intentions are good (which I believe they are).[ Reply to This | Parent | # ]
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