does a free license make software free?

[Sam Liddicott]

David Picón Álvarez wrote:
> From: "Alex Hudson" <home at alexhudson.com>
>   
>> That's not strictly true in many jurisdictions, including the UK, and
>> it's also not true to say that all distribution of GPL'd software would
>> necessarily preclude consideration in either direction.
>>     
>
> I would actually say this is strictly untrue in many jurisdictions. At least 
> in many with civil codes, a contract is not an exchange of considerations, 
> but some kind of mutual agreement that creates an obligation. For instance, 
> donations are contracts under this regime, and if I agree to donate 
> something to you, in normal circumstances, I can't simply revoke it.
>   
In the UK, in normal circumstances you can revoke it, until the point 
arrives when you have donated it; although I suspect this depends on the 
legal meaning of the word "agree" as distinguished from "intend", so no 
point in arguing this.

But it also reminds me of this poem that explains the meaning of the 
word "convenient" in a very topical way:

http://www.worldwideschool.org/library/books/lit/fantasy/SylvieandBruno/chap11.html
>   
>> I'm not saying the original author is distributing under the terms of
>> GPL, just that if they claim to do that but fail to perform, recipients
>> may have some kind of recourse.
>>     
>
> I suspect there are at least 3 approaches to give action to the recipient. 
> One is to say that the GPL is a contract and creates an obligation on the 
> granter to fulfill it. 
The GPL does not present itself as a contract, although perhaps it could 
be used as the basis of one.

But I don't see how the original author can ever distribute under the 
GPL, the license that forms part of the package traditionally is the 
license regulating the recipients use, not the distributors use, and any 
terms mentioning distribution in the GPL refer to the recipient as a 
distributor, granting distribution rights. We are confused because most 
GPL distributors are also recipients.

The original rights holder is not a recipient and never receives a 
license. Generally I can't see how any recipient (non-rights holder) 
could ever expect to "know" under what terms their distributor received 
it before distribution (typically a commercial secret), or what 
complaint they would have if they "suspected" that the distributor had 
breached this license - other than grass-up to the rights-holder.

(Of course with the GPL if the distributor is not the rights holder we 
can guess that they received the software and GPL license)

The GPL places no obligations a rights holding granter, it places 
obligations only on non-rights-holding distributors.

The only binding power the GPL has is leveraged on the grant of 
distributive rights which the receiver is desirous to obtain and 
receives conditionally.
> A second one is to say the information given by the 
> granter is a public offer, and when accepted by the recipient binds the 
> granter to fulfill the conditions of the offer (GPL). 
It may be a public offer only if the distribution is a public 
distribution. If it were a private distribution then it is a private offer.

The "offer" is misleading. You can receive GPL software and not be bound 
by the license merely by refraining from distribution. The offer is one 
accepted from the rights-holder in order to receive distribution rights.

The granter is not offering to bind themselves, but to grant addition 
rights to another who agrees to bind themselves.

A distributor has bound themselves in the act of distribution by 
exercising the additional conditional rights from the granter.

> A third is the 
> doctrine of non-negation of one's own acts. This means that if you give me a 
> licence to enter your home, for instance, you can't then deny your own act 
> and sue me for entering your private property.
>   
This is a misleading example.

If a rights holder distributes binaries and allows you to re-distribute 
those under the GPL it doesn't give you the right to have the source 
from the rights holder, it does give you the right to distribute the 
binaries and other derived works IFF you also distribute the source.

In terms of your example the GPL does NOT give the right to enter the 
granters home. It clearly doesn't, if you read it. It grants additional 
copyright-forbidden actions if the licensee can meet the terms.

If reception of the software with GPL license is part of a contract and 
the rights-holder does not provide the source then the licensee is
 unable to exercise distribution rights and perhaps frustrated in their 
expectations from the contract; this is the only way I can see that they 
can require the source, and it depends on an additional contract because 
the GPL (even as a contract) from the rights holder to anOTHER only 
regulates copyright-restricted actions by the OTHER.

Even if you disagree with all that, the obligation of the distributor to 
provide source is not an obligation to the licensee it is performed to 
the licensee but the obligation is to the licensor, in exchange for 
which distribution rights are obtained.

So if a distributor fails to provide the source (and even if the GPL is 
a contract) he has not breached the "GPL" contract with the person he 
distributed to because the GPL contract (if it is one) is with the 
rights-owner licensor - which in this case is the distributor.

In short the GPL can't make a full owner release the source when they 
distribute binaries or other works derived from the source. It can only 
work on people who don't already have that distribution right.

However if you say "I'll pay you $$$ if you give your project to me 
under the GPL" (which is a careless way to put it) then that statement 
(if agreed to) becomes the additional contract which may be frustrated 
if the granter doesn't also cough up the source, for does "under the 
GPL" mean "my distribution is according to the pattern of the GPL" or 
"your distribution is according to the GPL"?

Typically it is the former, the licensee  receives something under 
license. If they wanted the  source they should have asked for it.  In 
fact if they then later request the source and get it, they must check 
that they are permitted to distribute the source, perhaps the original 
agreement only covered the binary.

Sam
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