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SubjectRe: Dual-Licensing Linux Kernel with GPL V2 and GPL V3


On Fri, 15 Jun 2007, Daniel Hazelton wrote:
>
> And the preamble, not being part of the active portion of the license, has
> absolutely *ZERO* bearing.

That's not true. Again, ianal, etc etc, but:

"Intent" *does* matter, and if you wrote down the intent at the time you
entered some legal agreement, that actually also has non-zero bearing (as
it can be used to _show_ intent more clearly than claiming fifteen years
later "but, your honour, I _intended_ to do something else").

BUT!

Intent only matters if the contract reading itself isn't otherwise clear!

In other words, intent can never *override* the contract. But if there is
some actual legally unclear area, the intent can be used by a
judge/jury/arbitrator to _guide_ them to the decision. And the better
documented that intent is, the better it is in that respect. Intent
_after_ the fact is not very meaningful, is it?

So the preamble *does* matter legally, it just matters a lot less than the
actual legal wording itself.

Put another way: the "intent" of the parties can be, and is, used to read
the contract, but it's actually a mutual thing for a contract (since you
have two or more parties in question - the intent of _one_ party doesn't
really matter, if he cannot show that the other party agreed with that
intent! And to get back to rms' personal history: _his_ intent, and _his_
personal history, and _his_ other documents don't matter for an
agreement that doesn't include him).

So as such, a preamble can be used to show the intent of the parties, and
thus to guide any reading.

Of course, so can "real life". If a certain reading of a contract doesn't
make sense (and that has nothing to do with "intent"), then that obviously
cannot be what either party really agreed to.

Oh, and documented intent can be used for laches, ie it can be a _defense_
against an accusation. If somebody has publicly stated some intent, he
can't really complain later when somebody else tried to fulfill his
intent, can he?

Linus

PS. "Intent" can obviously have a _totally_ different legal meaning too.
The difference between "murder" and "manslaughter" is about pre-meditation
- ie "intent". But that's not an issue in licenses/contracts, except for a
very specific _kind_ of "contract" - the kind the Mob puts out on people
it wants to get rid of ;)
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