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Re: gpl licensing

From: Alexander Terekhov
Subject: Re: gpl licensing
Date: Mon, 04 Dec 2006 08:54:51 +0100

rjack wrote:
> Kunze Letter

Oh that's great. Eben should send another similar letter to the DISTRICT 


"The GPL grants anyone who enters into such contract with the licensor"

"Since the conditions of the license granted by the GPL are easily 
available on the Internet, they were without a doubt incorporated 
into the contractual relationship between the authors and Defendant 
(Section 305, Subsection 2, No.2 of the German Civil Code (BGB))."

"invalidity of this part of the GPL would also jeopardize the further 
development of the software and therefore affect the basic principle 
of open source, which is incorporated into the contract by virtue of 
the preamble of the GPL (cf. Annex K11)."

"Plaintiff would also be entitled to plead invalidity of the entire 

"Plaintiff, or the licensors from whom Plaintiff derives his right, 
have not violated any contractual obligations themselves. Rather, 
Defendant, who violated contractual obligations, relies on rights 
granted by contract."

"Plaintiff would not be not barred from claiming invalidity of the 
entire contract."

And another similar letter to SCO.

Summary judgment is appropriate on IBM’s Sixth Counterclaim, unless IBM 
demonstrates a genuine issue of material fact as to the existence of a 
breach of the GPL. See Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d 
1373, 1378 (10th Cir. 1988). In its Seventh Counterclaim, IBM alleges 
that it relied on SCO’s promise not to breach the GPL. Accordingly, in 
order to survive summary judgment on this counterclaim, IBM must 
demonstrate an issue of fact as to the existence of a breach of the GPL. 
See Tolboe Constr. Co. v. Staker Paving & Const. Co., 682 P.2d 843, 
845-46 (Utah 1984) (addressing elements of a promissory estoppel claim 
under Utah state law). Restatement of Contracts § 90 (allowing remedy 
for “breach” of promise “as justice requires”).1

The copyright cases expressly discussing the issue have rejected the 
notion of “retroactive” breach, termination and infringement. In MCA 
Television, Ltd. v. Public Interest Corp., 171 F.3d 1265 (11th Cir. 
1999), for example, the court explained:

The notion that MCA had the power retroactively to rescind the contract 
makes a mockery of that contractual agreement and would put any 
contracting party in PIC’s position in terror of upsetting the licensor 
in any way for fear of being declared in breach, having the contracted-
for licenses “retroactively revoked,” and being sued both for breach of 
contract and in copyright for statutory damages that can far outweigh 
contractually negotiated licensing fees.

Id. at 1274 n.8; see also Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 
753 (11th Cir. 1997) (holding that one party’s breach does not 
automatically rescind a contract simply because that breach might give 
the other party the right to rescind); 3 Melvin B. Nimmer, Nimmer on 
Copyright § 10.15[A] at 10-120 (2004) (“[T]he license is terminated and 
the copyright proprietor may hold his former grantee liable as an 
infringer for subsequent use of the work. Failing such rescission . . . 
the grant continues in place . . . until such time as the copyright 
owner exercises his entitlement to rescind.”).

It is a “well settled principle that where a contract is susceptible of 
two interpretations, preference will be given to the interpretation which 
does not violate the law.” Bd. of Dirs. And Officers, Forbes Fed. Credit 
Union v. Nat’l Credit Union Admin., 477 F.2d 777, 784 (10th Cir. 1973); 
accord NLRB v. Local 32B-32J Serv. Employees Int’l Union, 353 F.3d 197, 
202 (2d Cir. 2003); Guthart v. White, 263 F.3d 1099, 1104 (9th Cir. 2001). 
Accordingly, the Court should not construe the GPL as IBM suggests.

And another similar letter to IBM.

SCO has taken source code made available by IBM under the GPL, included 
that code in SCO's Linux products, and distributed significant portions 
of those products under the GPL. By so doing, SCO accepted the terms of 
the GPL (pursuant to GPL § 5), both with respect to source code made 
available by IBM under the GPL and with respect to SCO's own Linux 


As a result of SCO's breaches of the GPL, countless developers and 
users of Linux, including IBM, have suffered and will continue to suffer 
damages and other irreparable injury. IBM is entitled to an award of 
damages in an amount to be determined at trial and to an injunction 
prohibiting SCO from its continuing and threatened breaches of the GPL.


SCO's GPL violations entitle IBM to at least nominal damages on the Sixth 
Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC 20 P.3d 
388, 392 (Utah 2001) (explaining that it is "well settled" that nominal 
damages are recoverable upon breach of contract); Kronos, Inc. v. AVX 
Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages are always 
available in breach of contract action".). Thus, SCO's footnoted damages 
argument is no basis for summary judgment as to liability. Moreover, IBM 
has proffered expert evidence that it was financially damaged by SCO's 
violations of the GPL.

First, as IBM expert Professor J. R. Kearl will testify at trial, under 
the methodology of SCO's own experts (offered in support of SCO's 
affirmative case), IBM has suffered quantifiable damages resulting from 
SCO's wrongful conduct, including its GPL violations. (¶ 28; Ex. 591 ¶¶ 
1.C, 33-34.)

And another similar letter to professional lawyers hired to defend the FSF 
in Wallace case.

"The contract controls" said Ice Miller's lawyers for the FSF to federal 
judge Tinder.


P.S. IBM: "the Court need not reach the choice of law issue because Utah 
law and New York law are in accord on the issues that must be reached to 
address SCO's sole argument on this motion, namely, that SCO did not 
breach the GPL. Throughout this brief, IBM cites to both Utah law and 
New York law."

If I were SCO I'd hire 48 US kids with copyrights in Linux to join IBM's 
GPL counter claim so that IBM can impress the judge in Utah with cites to 
laws of all 50 states. Then I'd trigger IBM to go *international* (hiring 
kids outside US).

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