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Re: The GPL is the way to go

From: Alexander Terekhov
Subject: Re: The GPL is the way to go
Date: Fri, 24 Nov 2006 17:41:52 +0100

rjack wrote:
> First:
> "Eben Moglen: Yeh, I also make lawyers, I teach something called "Law
> and The Information Society", I'm not too keen on "cyberspace". I'm the
> general counsel of the Free Software Foundation, and I'm trying to
> report on the revolution which is destroying intellectual property. Of
> which I am entirely in favour."


"Eben Moglen*

I am a historian and a computer programmer, but primarily I am a lawyer. 
My research, ongoing for a decade, follows a purely experimental 

   1. Try to create freedom by destroying illegitimate power sheltered 
      behind intellectual property law.

   2. See what happens.

Early results are encouraging.

Current research proceeds by facilitating high-energy collisions between 
widely-dispersed non-homogeneous randomly-motivated incremental acts of 
individual creativity and large masses of ill-gotten wealth. The primary 
collision domain is the thin layer of executable software that enables 
production and distribution of all zero marginal-cost goods (bitstreams) 
in a globally transformed economy.[1] Ongoing complete destruction of 
monopoly control in this layer triggers secondary fission in adjacent 
layers (music; video; literary as well as scientific, technical and 
medical publishing; higher education policy; criminal prosecution vel 
non of scientists and scholars; etc.) Observation is complicated because 
collisions occur in an atmosphere heavily contaminated by wide-scale 
political bribery.[2] Despite observational difficulties, multiple 
independent observers report increased likelihood of basic 
transformative shifts in loci of political control and social authority. 
This phenomenon is conventionally described in the relevant literature 
as ``revolution.''[3] 

*  Professor of Law, Columbia Law School. General Counsel, Free Software 

1  See Moglen, Anarchism Triumphant: Free Software and the Death of 
   Copyright, First Monday (1999) (mult. repr.) (mult. trans.).

2  See Moglen, The Invisible Barbecue, 97 Colum. L. Rev. 945 (1997).

3  See Moglen, The DotCommunist Manifesto (2003). See and hear Moglen, 
   The DotCommunist Manifesto: How Culture Became Property and What We're 
   Going to Do About It (University of North Carolina, Chapel Hill, 
   November 8, 2001). See also Crane Brinton, The Anatomy of Revolution 
   (New York, Prentice-Hall: 1952) (mult. repr.) (unfree); Barrington 
   Moore, Jr., Social Origins of Dictatorship and Democracy; Lord and 
   Peasant in the Making of the Modern World (Boston, Beacon Press: 1966) 
   (mult. repr.) (unfree); Karl Marx & Friedrich Engels, Manifesto of the 
   Communist Party, (English ed. London, 1888) (Engels ed.) (mult. repr.) 
   (mult. trans.)."

> Next:
> "As for Novell, the charge is rather simple. The agreement violates GPL
> 2. It certainly does so in spirit if not the letter. But, I think a case
> can easily be made that it also violates the letter. . .
> But, what tort has Microsoft committed? And does it matter that Novell
> apparently called them first? At the present time “intentional
> interference with contractual relations” comes to mind. . .
> Now it would appear that the FSF (Free Software Foundation) as holders
> of many of the copyrights relating to the Linux kernel and other
> applications has decided not to pursue legal redress against Novell or
> even Microsoft. Or, at least that is the current position. That may
> change however."
> How can an esteemed professor of law (Moglen) who favors the
> "destruction" of intellectual property pass up the opportunity for legal
> redress against Novell or Microsoft thereby demonstrating to the world
> that the GPL is the way to accomplish a goal?
> Could it be possible that Moglen does *not* wish court scrutiny of the
> GPL under copyright and contract law?
> 1) Perhaps the is GPL is unenforcable under contract law.
> 2) Perhaps the GPL is preempted under 17 USC sec. 301.
> 3) Perhaps the GPL is a misuse of copyright.
> One things seems certain. Moglen is obviously in no hurry to find out.
> Three guarantees in life:
> 1) Death.
> 2) Taxes.
> 3) Pigs will fly before the Free Software Foundation ever files to
> enforce the mighty GPL in a U.S. court.



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