Re: The GPL dream is finally over!

[Alexander Terekhov]

Linonut wrote:
> 
> * Rjack peremptorily fired off this memo:
> 
> > My dream is that Eben, RMS, and all GPL true believers read and
> > understand this decision so that we need never again hear the
> > nonsense claim that "The GPL is a license and not a contract".
> >
> > http://bulk.resource.org/courts.gov/c/F3/88/88.F3d.1012.95-5125.95-5121.html
> >
> > Please! Someone email this decision to Eben Moglen and PJ and all
> > the GNUtians out there on our planet.
> 
> I'll believe it has the effect you want when it hits the headlines due
> to an actual court case involving the GPL.
> 
> The good faith usage of the GPL has been going on for a couple decades
> now, and has resulted in a large body of software being available to
> millions of people.  A conflict with business was inevitable, but, in
> the highest-profile case so far, IBM vs SCO, the plaintiff kind of let
> the GPL angle drop.
> 
> You're going to have to work much harder to overcome examples like that.

Linonut, Linonut. If you believe that IBM is/was of opinion that "The
GPL is a license and not a contract" how are you going to explain 

IBM's SIXTH COUNTERCLAIM (Breach of the GNU General Public License) 
against SCO... "SCO accepted the terms of the GPL... IBM is entitled 
to a declaration that SCO's rights under the GPL terminated, an 
injunction prohibiting SCO from its continuing and threatened breaches 
of the GPL and an award of damages in an amount to be determined at 
trial" (Pretty much the same as MySQL's claim below, BTW.) From IBM's 
memorandum: 

"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".). " 

Also worth noting (from IBM's brief regarding the GPL contract breach): 

"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." 

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf 

MySQL's counter-complaint asserting breach of GPL license contract 
("COUNT VIII Breach of Contract (GPL License)") and asking for 
declaratory (court to declare GPL terminated) and injunctive (court to 
preliminary and permanently enjoin Progress/NuSphere from "copying, 
modifying, sublicensing, or distributing the MySQL(TM) Program") 
relief (plus damages, of course). 

Note that Judge Saris correctly denied MySQL's motion for preliminary
injunction applying contract (not copyright) standard regarding
irreparable harm.

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

What say you now, Linonut?

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)