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Re: Wallace's reply brief

From: Ferd Burfel
Subject: Re: Wallace's reply brief
Date: Thu, 3 Aug 2006 17:40:03 -0500

"Alexander Terekhov" <> wrote in message">
> And only the GPL. The GPL is the only choice to obtain rights to property
> locked in the GPL pool (don't confuse it with non-bazaar models a la MySQL
> and Trolltech where no GPL-only forks exist). The GPL doesn't allow
> sublicensing under different "commercial" terms along the lines of the
> CPL/EPL/BSD/etc.

Ah, so we finally hit upon your disagreement with the GPL:  It doesn't allow 
people to take the work of others (that they obtained for no charge) and 
turn around and make a commerical product out of it.  And I suppose you 
think that if Wallace is somehow successful in his endeavor, the GPL will 
somehow be magically nulled and voided, and those that wish will be free to 
profit from the exGPL code.  As if the copyrights on that code are somehow 
dissolved as well.

But you know....the GPL is used voluntarily, not just by IBM, Redhat and 
Novell, but by many other companies and individuals.  No one forces them to 
license their code under it, they might just as well license it under the 
CPL/EPL/BSD, etc.  But they don't, and Wallace will have a hard time suing 
everyone that ever used the GPL.

Which brings us back to "non-parties" and such:  (IBM Brief, Footnote 7)"The 
existence of so many distributors of GPL software other than the three 
defendants named here also raises serious questions whether the injunction 
plaintiff seeks could be effective in preventing the use of the Linux 
operating system, as those NOT A PARTY to this case would clearly not be 
bound by any such injunction."  (emphasis added) So any injunction against 
IBM would not apply to, say Debian, Ubuntu, etc.  Wallace would have 
to sue all of them as well.

Oh, and I "get it", I undertand what Wallace wants, or at least what he says 
he wants.  He wants nasty old IBM, Redhat, and Novell to stop releasing 
software under the GPL because it "prevents Plaintiff Daniel Wallace from 
marketing his own computer operating system as a competitor".  The problem 
with that argument, as has been pointed out to Wallace, by a real live judge 
is that "as alleged, the GPL in no way forecloses other operating
systems from entering the market. Instead, it merely acts as a means by 
which certain software may be copied, modified and redistributed without 
violating the software's copyright protection. As such, the GPL encourages, 
rather than discourages, free competition and the distribution of computer 
operating systems, the benefits of which directly pass to consumers." 
(Wallace v. FSF, Entry Granting Reasserted Motion to Dismiss (Docket No. 34) 
Page 6).  And after reading the CPL/EPL, the main difference I see is the 
commerical clause, so I can only guess that Wallace really wants the same 
thing  you want, to be able to plunder and pillage the work of others for 
your own profit.  Is there really and truly no CPL/EPL/BSD software that can 
compare to that which is GPLed?  Surely the GPL doesn't have a monopoly on 
talented programmers.

And I'll save some time for both of us.  You will no doubt wish to counter 
with something like: "The court understands Mr. Wallace's argument that the 
GPL may be preventing him from marketing his own operating system, and, for 
the purposes of the instant motion, accepts that allegation as true.", 
(Wallace v. FSF, Entry Granting Reasserted Motion to Dismiss (Docket No. 34) 
Page 6), you will no doubt "accidently" neglect to add "However, while this 
may be significant enough from Mr. Wallace's perspective, a plaintiff must 
prove not only an injury to him or herself, but to the market as well, which 
Mr. Wallace has failed to do."

Now, Redhat/Novell's brief is quite compelling as well, wherein they assert 
that since Wallace lost (even after 4 amended complaints) basically the same 
case against FSF, his case against IBM is dead as well.  I agree.

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