> The GPL, e.g., is not a contract. It says so right in it, for the benefit of those confused (including, as I noted, many lawyers and even judges).
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.
I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent.
And, as been noted twice before, courts are frequently confused about the differences between licenses and contracts. That there might also be a contract, written or implied, associated with certain licenses does not make the license itself a contract.
This is not just a matter of opinion. There are specific laws spelling out the differences, and a large body of case law affirming the differences, albeit with occasional confusion that serves to generate legal fees (which judges tend not to see anything in that needs fixing).
> I see that you have not read either GPL. 3: ”... nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License." And 2: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works".
Neither of those state that it is not a contract.
> I see that you also do not understand revocation. Your license rights under the GPL are, indeed, revoked if you violate it. GPL 3 spells out both temporary and permanent revocations.
Sorry, I was unclear. When I wrote "A non-exclusive license is revocable in the absence of consideration" I should have been more specific. It should have read "A non-exclusive license is revocable at will by the licensor in the absence of consideration".
> I see that you do not understand mutuality. There is no mutuality, in contract terms, if I or my agent have not communicated with you or your agent
A contract can be formed with one way communication. See, for example, shrink wrap software licenses where there is communication from the licensor via the text of the offered license, but no communication back from the licensee. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was the major case in this area.
Where does it say that? I see no such language in the text of either GPLv2 or GPLv3.
> A contract that has not been affirmed by exchange of consideration and at least implied consent is void.
That's incomplete. Better would be to say that a contract needs consideration or a substitute for consideration. Promissory estoppel (also known as detrimental reliance) can take the place of consideration in contract formation.
The use of GPL software by someone who has read the GPL has all the elements necessary for contract formation:
1. It has an offer: to let the licensee do things with the software that they would otherwise be copyright infringement,
2. It has an acceptance: the licensee starts doing things those otherwise copyright infringing things,
3. It has mutuality: both parties were aware of and intended for the license to allow the licensee to do those otherwise infringing activities, and
4. It has a substitute for consideration: promissory estoppel. The licensee has acted in reliance upon the promise in the offer in a way that is legally detrimental to them if the promise is not enforced.
Courts tend to find that there is a contract when you have all the elements of contract formation, regardless of how the parties characterized their arrangement.
What I don't understand is why anyone would even want a FOSS license to be a license that is not also a contract. A non-exclusive license is revocable in the absence of consideration. Generally, you want your FOSS licenses to be irrevocable.