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Re: When is a GPL program which runs in a web site 'conveyed'?

From: rjack
Subject: Re: When is a GPL program which runs in a web site 'conveyed'?
Date: Tue, 08 Jul 2008 13:52:45 -0400
User-agent: Thunderbird (Windows/20080421)

Hyman Rosen wrote:
Alexander Terekhov wrote:
How can you not realize utter moronity of GNUish claims regarding the
legal status of the GPL, Hyman?

Perhaps because of <>?

OK Hymen. Let's look at the very heart of your ProCD citation:

"But whether a particular license is generous or restrictive, a simple two-party contract is not "equivalent to any of the exclusive rights within the general scope of copyright" and therefore may be enforced. REVERSED AND REMANDED".

See the phrase "a simple two party-contract"?

The GPL is *not* "a simple-two party contract". It is a third-party donee beneficiary contract with the intended beneficiary class identified as "all third parties" (which is the general public). It purports to bind "all third parties" to the terms of the GPL contract.

Here's the Supreme Court in EEOC V. Waffle House, Inc.; 534 U.S. 279 (2002):

"It goes without saying that a contract cannot bind a nonparty."

Do you *really* believe that the GPL can bind all those "downstream" third-party beneficiaries? Congress specifically passed 17 USC sec. 301 to prevent commom law contracts from enforcing new "copyrights" (the F.S.F. uses the word 'freedoms') that apply to the general public.

Rjack :)

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." -- John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre Trials,' December 1770

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