Re: Attorney fees

[rjack]

Hyman Rosen wrote:
> rjack wrote:
> > Regardless of the legal reasons for contract failure, the donated copyright
> >  permissions will be enforced by the courts.
>
> In your dreams, perhaps. Do you know of any instance where after a case was 
> brought on the basis of the GPL, that the source was not made available 
> afterwards? Do you know that a court in Germany has decided in favor of the 
> GPL in the way we always say?

I do not speak German and do not understand what the German courts say. Each
sovereign country has a perfect right to enforce their version of laws in their
respective jurisdictions. I live five thousand miles from Germany and reference
the law as it is applied in U.S. jurisdictions. I strongly suspect that
Alexander Terekhov has forgotten more about German law than you will ever learn.

> > "A promise which the promisor should reasonably expect to induce action or 
> > forbearance on the part of the promisee or a third person and which does 
> > induce such action or forbearance is binding if injustice can be avoided 
> > only by enforcement of the promise."
>
> Exactly. Someone receiving a distribution of GPL-licensed code reasonably 
> expects that he has been promised the sources as well. He may start using the
>  software in expectation of being able to fix or change it as needed, and the
>  only way to repair injustice when the distributor refuses to honor his 
> promise is to compel him to do so.

Have your ears heard what your mouth has spoken?

Listen to your words "Someone *receiving* a distribution". The Monsoon cases by
the SFLC were filed by plaintiffs claiming *distribution* of their source code
-- not as receivers of a distribution.

The *recipients* of the promised code have standing as third party donee
beneficiariesto invoke promissory estoppel as plaintiffs against the
*distributors* of GPL'd code. I am certainly pleased to hear that you finally
agree with my legal position.

This is what I have always claimed: The GPL terms are legally unenforceable by
plaintiff-authors of GPL'd source code. When you release your source code under
the GPL it becomes a charitable subscription "donation" to the general public.

Way back in the SCO v. IBM war, I pointed out that IBM's own layers described
GPL'd source code as:

"The Linux developers' public agreement to apply GPL terms expresses in a
binding legal form the conscious public covenant that defines the open-source
community -- a covenant that SCO itself supported as a Linux company for
many years."

A "binding legal form" is a *contract*. A "conscious public covenant" is a
promise to the general public (a 'charitable contribution'). In summary
IBM called the GPL a "third party donee beneficiary contract".

Sincerely,
Rjack

--- "[I]f an extra element is required instead of or in addition to the acts of
reproduction, performance, distribution or display in order to constitute a
state-created cause of action, there is no preemption, provided that the extra
element changes the nature of the action so that it is qualitatively different
from a copyright infringement claim." Stromback v. New Line Cinema, 384 F.3d 283
(United States Court Of Appeals for the Sixth Circuit 2004) ---