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Re: gpl licensing
Re: gpl licensing
Mon, 04 Dec 2006 08:54:51 +0100
> Kunze Letter
Oh that's great. Eben should send another similar letter to the DISTRICT
COURT OF FRANKFURT AM MAIN, I suppose.
"DISTRICT COURT OF FRANKFURT AM MAIN On behalf of the people JUDGMENT"
"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
And another similar letter to SCO.
Summary judgment is appropriate on IBMs 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 SCOs 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 PICs 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 partys 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. Natl Credit Union Admin., 477 F.2d 777, 784 (10th Cir. 1973);
accord NLRB v. Local 32B-32J Serv. Employees Intl 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 ¶¶
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
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).
Message not available
Re: gpl licensing, Rui Miguel Silva Seabra, 2006/12/02
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Re: gpl licensing, Rui Miguel Silva Seabra, 2006/12/03
Message not availableRe: gpl licensing, rjack, 2006/12/03