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GPL propaganda

From: Rjack
Subject: GPL propaganda
Date: Thu, 25 Sep 2008 19:17:19 -0500
User-agent: Thunderbird (Windows/20080914)

The questions concerning enforceability of the provisions in the GPL
will occur in the federal courts according to prevailing law. (I do
not consider non-US jurisdictions.) Arguments concerning
enforceability should be grounded in references to prevailing
federal statutes and case law concerning the licensing of
intellectual property.

Eben Moglen and his FOSS devotees generate reams of blog
publications and manifestos concerning the GPL and software code.
There is a glaring deficiency to these claims: any reference to
prevailing federal law supporting their assertions.

The FOSS strategy is one great GPL propaganda effort. All blow and
no go. We see dotCommunist Manifestos, celebrated conferences
drafting a new GPL license and a "A Practical Guide to GPL
Compliance". Nowhere do we see any reference to prevailing license
law in support of their wild claims. Professor Eben Moglen styles
himself a leading expert in licensing law.

Here is a major work published by Eben Moglen:

* * * * * * * * Enforcing the GNU GPL * * * * * * * *
. . .

This right to exclude implies an equally large power to
license—that is, to grant permission to do what would otherwise be
forbidden. Licenses are not contracts: the work's user is obliged to
remain within the bounds of the license not because she voluntarily
promised, but because she doesn't have any right to act at all
except as the license permits.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

Beautiful legal propaganda. The whole legal theory underpinning the
GPL and "copyleft" is based on the theory that a copyright license
is not a contract.

Google { license "not a contract" }. I got 1,440,000 hits. How's
that for propaganda?

Since 1927 when the United States Supreme Court declared a license
was in fact a contract, no federal court has ever ruled to the
contrary, see De Forest Radio Tel. Co. v. United States, 273 U.S.
236 (1927). This fact is no surprise:

"[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be."; HUTTO v. DAVIS, 454 U.S. 370 (1982)

So why does anyone who has read "Enforcing the GPL" believe in the
GPL when the theory underlying the GPL is demonstratively false?
Self deception?

I believe people should be able to evaluate both sides of a claim.
I have read posters who complain that I repetitively post my claims
on different blogs. But 1,440,000 times?

Rjack :)

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