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

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Thu, 29 Jun 2006 04:55:02 +0200

Bah, yet another brainwashed GNUtian. Tasty, tasty.

peterwn wrote:

[... license not a contract ...]

> Note that Eben Moglen is an Ivy League law professor

Risk of disbarment aside for a moment, Eben can disagree with the 
entire US federal judiciary and professional lawyers hired to defend 
FSF[1] and IBM[2] all he wants. That's apart from academic legal 
community (except Eben The Bullshit Rapper himself, of course).

"Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily promised,
but because she doesn't have any right to act at all except as the
license permits."

is simply legal nonsense.

Here's an email exchange with RMS:

"I assume, however, that at least some people want the GPL to be
binding--nothing can make it binding except a claim of contract."

-- the respondent's email address resolves to:
MICHAEL H. DAVIS, (Professor of Law) Cleveland State University.
Education: Occidental College (B.A.,1967); Hofstra Law School (J.D.,
1975); Harvard Law School (LL.M., 1979).

Perhaps further consideration should be given to:

"(A``non-contractual copyright permission'' would be some sort of
license that does not involve a contract I suppose, but that is not
a well defined term.)"

-- the respondent's email address resolves to:
Professor of Law Emeritus
Case Western Reserve University
College: Harvard College, A.B. 1955
Law School: Harvard Law School, LL.B. (magna cum laude) 1958

How about this:

"The GPL IS a contract. Calling it a license simply describes the type of
contract it is."

-- the respondent's email address resolves to:
Visiting Assistant Professor of Law, Rutgers University School of Law,
Camden, New Jersey, Fall 1999 to present.
EDUCATION: LL.M. (with Distinction), Georgetown
University Law Center, 1998. J.D., George Washington
University Law School, 1992. M.A., University of
Pittsburgh, Faculty of Arts and Sciences, 1986. B.A.,
University of Pittsburgh, College of Arts and Sciences,

Moglen makes extraordinary claims about the GPL, so why doesn't he come
forward with the appropriate legal citations? Moglen is a J.D. with a
Ph.D. in history and not an LL.M. He would not even be accepted as
qualified for Professorship at many institutions. What qualifies his word
alone as "legal authority"?


"Plaintiff's mischaracterization of the GPL in his Response has no
bearing on the resolution of the pending Motion to Dismiss because the 
Court can examine the GPL itself. "[T]o the extent that the terms of an 
attached contract conflict with the allegations of the complaint, the 
contract controls."


"as is evident from the ProCD case Plaintiff cites, copyrights may be
licensed by a uniform contract effective against all who choose to use
it. (Response at 6) (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
1454 (7th Cir.1996).) The court in ProCD held that  a "shrinkwrap"
software license, that is, a license that accompanies software limiting
its use, is an effective contract under the UCC against anyone who
receives the terms of the license and uses the software. Id. at 1452.
The court also held that state enforcement of such contracts under the
UCC would not be preempted by the Copyright Act or 17 U.S.C. § 301. Id.
The GPL, like the shrinkwrap license in ProCD, is a license applicable
to anyone who receives its terms and chooses to use it, and by using
it, accepts the terms under which the software was offered. Id.." 

> >
> >
> > "Nature of Suit: 190"
> >
> >
> >
> > "190    Other Contract        Contract
> >  ...
> >  820    Copyrights              Property Rights
> >  830    Patent                  Property Rights
> >  840    Trademark               Property Rights"
> >
> The Order says nothing about contracts - some law office or courthouse
> assistant would seem to have mis-categorised the case.

GNUtians can't read and comprehend (not to mention lack of basic 
knowledge in law).

"that portion [of] breach of contract claim that concerns its trademark."

Breach of contract claim that concerns its copyright is just another 

"With respect to the General Public License (“GPL”) ... even if MySQL 
has shown a likelihood of success on these points [merits], it has not 
demonstrated that it will suffer any irreparable harm."

In cases of copyright infringement, the duties are reversed. 

In cases of copyright infringement, the plaintiff is entitled to a 
presumption of irreparable harm if the plaintiff can show a 
likelihood of success on the merits.

"Moreover, I am not persuaded based on this record that the release 
of the Gemini source code in July 2001 didn’t cure the breach."

One just can't "cure" copyright infringement.

[... more bullshit ...]

Bzzt. GNU School of Law (aka GNU Church) Medalist. Class of Prof. 


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