The implications for the GPL are obvious. If the rest of the contractual elements are present, then the licensees sacrificing part of the rights to the their contributions to a derivative work is enough for a contract. The anticontract crowd still have other arguments,but this was one of the better ones, and it looks dead.

Note the typos.

I'm assuming that your intent in posting this article is to make this point about the GPL, in which case, this paragraph - a mere side-note - would hardly seem to do it justice. In particular, you should expand upon which rights "to a derivative work" "they" are sacrificing? Clearly it's not the right to prepare a derivative work in the first place. (That right belongs to the original copyright holder.) Nor is it the right to copy, publish, or distribute the derivative work, (since they needs the permission of the original copyright holder to do these things.)

The only rights they would appear to be sacrificing are the rights to enjoin others from copying, etc., under the GPL. To see whether this constitutes consideration, we need to look a little closer at the GPL itself to see how that sacrifice arises.

The most obvious way is from the requirement to redistribute under the GPL. Having done so, they are promisorily estopped from asserting those rights under copyright law they granted under the GPL. However this is just a consequence of the permission granted - to distribute under the GPL (which, absent the permission, you would not be permitted to do). I cannot see how this can be regarded as consideration unless the excercise of any licence is consideration, in that the licencee accepts the direct consequences of so doing, and forgoes the right to be doing something else.

The only other provision I can see in the GPL which might impinge upon right of a derivative creator is paragraph 6.

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

The first sentence seems to say no more than "Licensor grants these permissions to the redistibutees of licencee", which imposes no condition upon licencee. The second sentence is more interesting, because it appears to be ambiguous. Does it apply "Each time you redistribute the Program", or does it apply outside the distribution, such as continuing to apply after the act of distribution is complete. (For example, are the royalties demanded by SCOSource a breach of the GPL? IBM seems to think they are. See counterclaim 6) In this respect it's a bit like an agreement to stay in my home "provided that you do not smoke". If that means that you don't smoke outside, then it's consideration. If it merely means that you don't smoke while in my home, then it's a covenant.

Though not strictly within the ambit of "the rights to their contributions to a derivative work", We should also look at at clause 3b, which requires, in certain circumstance, licencee to make a written offer to supply source to third parties.  Making the offer is covenant - licencee's distribution is permitted only if accompanied with the offer. However honouring it is a different matter. If licencee is obligated under the GPL to honour the offer, then that is clearly consideration, but I can see nothing on its face within the GPL to require this. Any obligation which arises from the offer itself is not consideration and gives no cause of action under the GPL by licensor. (Licensor, like anyone else, may have a cause of action as a third-party beneficiary of the offer.) If I offer to let you drive my unfueled car to the other end of the country, it's not consideration that you have to enter into agreements with filling stations in order to be able to take advantage of my offer. The situation would be different if my offer explicitly or implicitly required you to honour your contractual agreements with filling stations giving me a cause of action if you didn't.

In summary, any condition that the GPL makes that is satisfied (or not satisfied) within the four corners of the CDROM or the FTP site on which the program is distributed is covenant. Any obligation specified in the GPL outside those corners is consideration. Any obligation that arises as a result of satisfying the conditions, but is not (implicitly or explicitly) specified in the GPL is neither. I can see no condition in the GPL which is clearly consideration.  An argument can be made about the second sentence of paragraph 6, and more dubiously about 3b.