Alexander Terekhov wrote:
rjack wrote:
Alexander Terekhov wrote:
I hope than Monsoon folks will take an opportunity to trash Moglen's
nonsensical GNU legal theory myths in federal court.
The GPL myth gives rise to another problem.
That problem is "legal standing". A license such as the GPL
contains terms that direct "designated third party
beneficiaries". The GPL's term 2(b) demands:
b) 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.
Any consideration flowing from the GPL is assigned to "all third
parties". This consideration is certainly sufficient under
contract law to form a valid contract:
“In addition, under contract law, a contract is supported by
consideration even if the consideration flows solely to a third
party. See Mencher v. Weiss, 114 N.E.2d at 181(“[I]t is
fundamental that a benefit flowing to a third person or legal
entity constitutes a sufficient consideration for the promise of
another.”); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e (1981)
(“It matters not from whom the consideration moves or to whom it
goes. If it is bargained for and given in exchange for the
promise, the promise is not gratuitous.”); see generally 3
WILLISTON § 7:5, at 60 (“It is well settled that a detriment
suffered by the promisee at the promisor’s request and as the
price for the promise is sufficient, despite the fact that the
promisor is not benefited as well.”); In re: Asia Global
Crossing, Ltd., et al. 322 B.R. 247 (Bankr. S.D.N.Y., March 21,
2005).
There is a fundamental principle underlying all actions in
federal courts:
“Standing doctrine delimits federal jurisdiction to, among other
things, cases involving real injuries to plaintiffs, the
so-called "injury-in-fact" requirement.”; Brooklyn Legal Services
Corp. v. Legal Services Corp., 462 F.3d 219 (Second Cir. 2006).
Although the copyright owners filed the action in federal court
in the Monsoon case they have suffered no "injury in fact" from
the claimed breach of the GPL -- which is stated in the complaint
as failure to provide access to the work's source code under sec.
2(b) requirements. As we have seen, sec. 2(b) requires access to
source code be provided to "all third parties" and not the
original licensor. In the legal arena you can't claim damages
from some else's injuries. A plaintiff must suffer a personal
"injury in fact" before he has standing in court. In the United
States designated third party beneficiaries have standing to sue
in their own right.
"The "irreducible constitutional minimum of standing contains
three elements": "[T]he plaintiff must have suffered an injury in
fact," "there must be a causal connection between the injury and
the conduct complained of, " and "it must be likely . . . that
the injury will be redressed by a favorable decision." Id. At
560-61 (internal quotations omitted).(5) The plaintiffs, as the
party invoking federal jurisdiction, bear the burden of
establishing these elements. Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 103 (1998). Failure to establish any one
deprives the federal courts of jurisdiction to hear the suit.;
Elizabeth Rivera v. Wyeth-Ayerst Laboratories (01-40122) (5th
Cir. 2002)
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