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Re: Attorney fees

From: rjack
Subject: Re: Attorney fees
Date: Wed, 16 Jul 2008 10:42:39 -0400
User-agent: Thunderbird (Windows/20080421)

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".


--- "[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) ---

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