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Re: "GPL requirement could have a chilling effect on derivative distros"

From: David Kastrup
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Wed, 28 Jun 2006 23:01:23 +0200
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Alexander Terekhov <> writes:

> David Kastrup wrote:
>> Alexander Terekhov <> writes:
>> > Karen Hill wrote:
>> >>
>> >> "I think, of the 500 distributions tracked by DistroWatch, probably 450
>> >> of them are in trouble right now per this position.",
>> >
>> > Criminal penalties (costs plus attorney's fees in a civil action aside for
>> > a moment), per FSF's own theory of enforcement through cause of action for
>> > copyright infringement (not breach of contract claim),
>> Sigh.  We are talking about a _license_ here.  
> I'll take it that you've finally groked that in spite of bullshit 
> rhetoric spouted by Moglen and his client, IP licenses are
> contracts.

Most things calling themselves so actually purport to be contracts.
That's what the "I agree" stuff and "if you don't agree, send back the
unused" stuff is all about.

> While a party that owns copyright rights is ordinarily entitled to
> pursue infringement claims against any third party who violates
> them, the courts have recognized that the rights and remedies
> available to copyright holders change significantly when the owner
> elects to give others a nonexclusive license to use such
> property. In that situation, the owner/user relationship is
> fundamentally different. Absent a license, the rights of the
> copyright holder are governed by statutory and common law rules
> applicable to such rights. With a license, however, the terms and
> covenants of the license establish the applicable rules. See Effects
> Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990) (in
> granting a copyright license, the licensor gives up its right to sue
> the licensee for infringement).
> Recognizing that the existence of consensual licensing arrangements


But there are no consensual agreements in case of the GPL because the
consent of the recipient is never actually elicited.

  5. 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.  These actions are
prohibited by law if you do not accept this License.  Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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