Re: Artifex v. Diebold: "The GPL is non-commercial!"

[David Kastrup]

Rjack <user@example.net> writes:

> Hyman Rosen wrote:
>
>> Now, a complaint may say anything at all. Artifex's statement is
>> not how licensing under the GPL is properly understood, but there
>> is nothing that can be done to prevent them from saying whatever
>> they want.
>
> Quite true.
>
> Now the rubber meets the road for Artifex. The burden is on Artifex to
> demonstrate the validity of the GPL and that its scope has been
> violated by Diebold.

No, the burden is not on Artifex to demonstrate the validity of the GPL.
If there is no valid license, Diebold is in violation of copyright
anyway.  Diebold has to state whether they consider having complied with
the license terms or not.

> "Copyright disputes involving only the scope of the alleged
> infringer's license present the court with a question that
> essentially is one of contract: whether the parties' license
> agreement encompasses the defendant's activities. Just as in an
> ordinary contract action, the party claiming a breach carries the
> burden of persuasion." Bourne v. Walt Disney Co., 68 F.3d 621, (2d
> Cir. 1995).
>
> This is something Eben Moglen has *never* done -- cite prevailing
> federal law that supports the validity of the GPL.

Because that is not under dispute.  Without a valid license, the
defendant is guilty of copyright breach.  So it is in the interest of
the defendant as well as the plaintiff to assume the validity of the
GPL.

> Diebold knows "there is nothing that can be done to prevent them
> [Artifex] from saying whatever they want" in their complaint. Diebold
> can now claim copyright misuse, GPL preemption and contractual
> impossibility and then set back and watch Artifex be forced to
> actually cite prevailing law that supports Artifex's specious claims
> -- something no GPL supporter has ever been capable of doing.

Because the defendants fold in lack of a tenable defense before that and
settle.  But IIRC, at least in Germany the validity has been established
in several cases (never mind that it would not help the defendant if it
were invalid) as a side note.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum