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Re: relicensing from MIT to LGPL

From: Alexander Terekhov
Subject: Re: relicensing from MIT to LGPL
Date: Fri, 12 May 2006 18:35:01 +0200

Rui Miguel Silva Seabra wrote:
> Sex, 2006-05-12 Ã s 17:23 +0200, Alexander Terekhov escreveu:
> > The FSF didn't dispute that the GPL is a contract. The FSF even told the
> > court that "the contract controls".
> That's still not the FSF but a document referenced in favour of Wallace.

You can't read or what? That citation of authority is in favor of the 
FSF, not Wallace. The FSF moved to dismiss under Federal Rule of Civil 
Procedure 12(b)(6)[1] and told the court to simply ignore Wallace's
allegations on "pooling" or a "cross-licensing" due to "conflict" (in 
FSF's view) with the attached contract (the GPL) -- FSF's footnote on 
"contract controls" was "The Court may properly consider the terms of 
the GPL in ruling on the Motion to Dismiss. "[I]t is well established 
that material which is attached to, or incorporated by reference in, 
the plaintiff's complaint may be considered by the Court on a motion 
to dismiss under Rule 12(b)(6)."

And indeed, Judge Tinder ended up ignoring pretty much everything 
(including citations of the case law and precedent on predatory 
pricing) written by Wallace and based his decision on his 
"understanding from the GPL istelf" and (unchanged) alleged co-
conspirator's (Vice President of MontaVista) article "Taking the 
Case: Is the GPL Enforceable, 21 Santa Clara Computer & High Tech 
L.J. 451, 487 (2005)."[2]

Judge Tinder wrote (in footnote): "The court may refer to the GPL in 
deciding the motion to dismiss because Mr. Wallace referred to it in 
his Fourth Amended Complaint."

[1] "When ruling on a motion to dismiss under Federal Rule of Civil 
Procedure 12(b)(6), the court must accept as true the factual 
allegations contained in the complaint, as well as the inferences 
reasonably drawn therefrom. Forseth v. Vill. of Sussex, 199 F.3d 363, 
368 (7th Cir. 2000); Baxter by Baxter v. Vigo County Sch. Corp., 26 
F.3d 728, 730 (7th Cir. 1994). A dismissal is appropriate only if the 
plaintiff can establish no set of facts, even if hypothesized, 
consistent with the allegations of the complaint that would entitle 
him or her to relief. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, 
Inc., 40 F.3d 247, 251 (7th Cir. 1994). Moreover, the court must 
examine only the complaint, and not the merits of the lawsuit. See 
Autry v. Nw. Premium Servs., Inc., 144 F.3d 1037, 


"The GPL is not just a method for a licensor to give up rights that 
he could otherwise enforce in court; the GPL imposes obligations on 
the licensee as well, which the licensee must accept.27 It is likely 
that a court, in the U.S. or abroad, would recognize the GPL as a 
contract. In fact, the GPL has been cited as a contract, and breach 
of the GPL as a contract was alleged, in both of the first two U.S. 
federal court cases in which the GPL was implicated.28 For purposes 
of this article, it is necessary to address the GPL as a contract in 
order to address some of the challenges levied against the document. 
1039 (7th Cir. 1998)."

Got it now?


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