IBM/SCO/GPL (Was: Re: (L)GPL remarks and FreeGIS licensing)

[edA-qa mort-ora-y]

Alex Hudson wrote:
> Well, ignorance is actually a defence. For example, if someone cons you
> into signing a document that is actually a contract for something, that
> signature doesn't really mean much and you are not considered bound by
> the contract.

This varies a *lot* from country to country, but a typical pattern is 
that ignorance is no excuse from criminal law, and in contract law it 
becomes fuzzy.

In criminal law however there is a great deal of emphasis placed on 
motive.  Usually this is more important in the investigative stage and 
plea bargaining -- though sometimes during a trial a series of 
circumstantial evidence can be held together with a strong motive.

In contract law again, motive often plays an important role -- and this 
is very relevant for the GPL (again, depending on country, and I've not 
seen so many contract cases in the USA).  When entering a contract both 
sides agree to a form of reasonable compensation (countries usually 
establish a series of tests to determine whether something is a valid 
contract, I'm only familiar with Canada in this regards).

In the case, for whatever reason, the contract is invalid, and a deal 
cannot be struck between the parties, an arbitrator or judge will try to 
make sense of the contract and assign terms and obligations on both 
parties -- that is, the judge will try to fix it.  First by removing 
illegal clauses, then by resolving ambiguities, and then whatnot more...

In the case of distributing code dervied from a GPL licensed codebase 
(from party A) and them claiming your (party B) own code is not GPL, 
this removes the original parties compensation in the contract.  When 
party B decides they made a serious mistake and effectively withdraw 
their code from the GPL, an arbitrator/judge has two reasonable options, 
considering that party B has already profited from the contract:
a) Party B compensates party A in a reasonable amount based on the 
amount of profit they made off the product; or
b) Party B abides by the terms of the contract and allows their code to 
be released as GPL.
(option A is very difficult when there are potentially thousands of 
people who would need to be compensated)

Any Judge, or contract law, that allows Party B to both start 
disallowing their code from being used, and not provide any form of 
compensation to Party A, is seriously flawed.

The motive comes into play as well, since contracts are supposed to be 
entered within a set of fair and honest negotiations.  If one party can 
prove the other was unfaithful when they signed the contract, it *may* 
give them leverage before a judge.

-- 
edA-qa mort-ora-y
Idea Architect
http://disemia.com/