Open source Free software 2619

I meant that clauses usually are not worded in such a way that it's immediately clear to everyone that they are illegal. You usually have to factor in the circumstances of the licensor, licensee and the time the licensing activities happens.

I did not mean to imply that the GPL has illegal clauses. (Alexander, shut up)

That's also why judges use the big red marker instead of the shredder. They don't want to put a licensee in a position where he suddenly doesn't have any license at all, if it is possible (and not unfair to the licensor) to just strike out the bad clause.

So, in the theoretical case a court would find that clause 2(b) of the GPL is unenforceable, they would not necessarily say "dear company, you no longer have a license at all". Instead they would say "dear company, forget about 2(b) but do stick to all the other clauses".

To prevent this, the licensor would have to argue that 2(b) is so fundamental to the GPL's purpose that he would not reasonably have granted the license if he had known 2(b) would be held unenforceable.

Arnoud

-- Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself