Only a fool represents himself in court…
Tuesday, 3 May 2005
Daniel Wallace is at it again. During the last two years Daniel has been spouting nonsense about the GPL everywhere he could.
He tried it at Groklaw, but was quickly exposed as what he really is: a frustrated software engineer and not the legal mastermind that he pretended to be. He tried the media which picked up on it, but quickly forgot him again after some real legal masterminds tore every single one of his arguments to shreds.
The Defendant FREE SOFTWARE FOUNDATION INC. has entered into contracts end otherwise conspired and agreed with individual software authors and commercial distributors of commodity software products such as Red Hat Inc. and Novell Inc. to artificially fix the prices charged for computer programs through the promotion and use of an adhesion contract that was created, used and promoted since at least the year 1991 by the FREE SOFTWARE FOUNDATION INC. This license is known as the GNU GENERAL PUBLIC LICENSE.
There are so many things wrong with this section alone, I hardly know where to start.
The GPL is not a method to artificially fix the prices charged for computer programs. The GPL allows companies and individuals to sell GPLed products. There is nothing in the GPL that prohibits that and there is nothing in the GPL that says you must sell it at a specific price. Even if many products are available for free (as in beer) there is nothing in the GPL the requires it. In fact many companies actually sell their GPLed software. Both companies mentioned in the section above, Red Hat and Novell are commercially selling Linux distributions. Both are actively competing with other commercial vendors like Sun, Apple and Microsoft.
Next, Daniel call the GPL an ‘adhesion contract’.
adhesion contract n.(contract of adhesion) a contract (often a signed form) so imbalanced in favor of one party over the other that there is a strong implication it was not freely bargained. Example: a rich landlord dealing with a poor tenant who has no choice and must accept all terms of a lease, no matter how restrictive or burdensome, since the tenant cannot afford to move. An adhesion contract can give the little guy the opportunity to claim in court that the contract with the big shot is invalid. This doctrine should be used and applied more often, but the same big guy-little guy inequity may apply in the ability to afford a trial or find and pay a resourceful lawyer.
First of all, the GPL is not a contract, but a license. The difference is legally quite significant. A contract is usually between specific parties. Those parties sign the contract and are obliged to follow the provision of the contract. If one of the parties doesn’t follow the provisions of the contract the other party can usually ‘fix’ this by using the courts. A license is something different. It is a grant of rights. It’s not between two parties but between the licensor and the whole world. Anybody that accept the terms of the license is entitled to the rights it grants. There is no signature required, in fact the licensor does not even have to know the licensee. Daniel is convinced the GPL is a contract. He and I had this discussion before and there is nothing or nobody that can change his mind. Too bad, because he is going to look like a fool in court.
Secondly, even if we consider the GPL a contract, it is still not a adhesion contract. An adhesion contract is imbalanced to favour one party, according to Daniel, the writer of the GPLed software. The GPL is not imbalanced at all and it does not favour one party. Sure, the GPL places some restrictions, but it also grants you an immense number of rights that you did not have before. There is nothing in the GPL that requires you to do something you do not like. If you do not like the restrictions you can freely choose not use the software the licensor is offering.
What Daniel wants is to use GPLed software without having to abide by the rules. Sorry, Daniel, if I write something I make the rules. If I want to release it under the GPL you are going to have to live with it. Don’t like it? Write your own software.
Perhaps the most telling part of his complaint is the fact that he is representing himself pro se. How did that saying go again…