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Re: the GPL is a license not a contract ..

From: Alexander Terekhov
Subject: Re: the GPL is a license not a contract ..
Date: Wed, 11 Mar 2009 16:02:22 +0100

Hyman Rosen wrote:
> Rjack wrote:
> > So what is your point?
> Violation of the GPL will be considered copyright infringement
> no matter how you might like to natter on about contracts and
> flavors of conditions.

How come that judge Saris did NOT consider alleged violation of the GPL
to be copyright infringement in MySQL v. Progress case, Hyman?

"In any event, even if MySQL has shown a likelihood of success on these
points, it has not demonstrated that it will suffer any irreparable harm
during the pendency of the suit ..."  The judge is not applying a
copyright law standard here (overtuned by the Supreme Court not long
ago), which would have given MySQL an automatic presumption of
irreparable harm that it would be up to Progress to rebut.  As well she
shouldn't have; as there were no sufficient grounds for rescinding the
contract, no claim of copyright infringement could succeed.  And MySQL
was unable to make a showing on the facts that they would suffer _any_
harm during the pendency of the suit, let alone harm that could not be
repaired through monetary damages after the fact.

MySQL had a plausible (but not proven) case that Progress might have
been at one time in breach of the GPL's contract terms.  But in order to
justify rescission of the contract, the breach would have to have been
1) proven, 2) not repaired by subsequent conduct, and 3) not just
material enough to justify damages but of a nature such as to "strike at
the heart of the contract between the parties".  These are proper
contract law standards and neither the "automatic termination" language,
nor the claim to be a "copyright-based license", nor Eben Moglen's plea
on behalf of his enforcement weapon swayed the court.

The judge was not "persuaded based on this record that the release of
the Gemini source code in July 2001 didn't cure the breach."  So much
for the "automatic termination" clause.

If this were a copyright infringement case, the judge's opinion would
contain boilerplate language about "automatic, rebuttable presumption of
irreparable harm" and a citation to whatever is the usual First Circuit
opinion acknowledging that standard in copyright cases.  (It's possible
that said citation will be from another circuit, such as Apple Computer,
Inc. v. Franklin Computer Corp. (3d Cir. 1983), which appears to be used
for this purpose in several circuits.)  And whether or not the outcome
would have been different, the text of the opinion certainly would have
been.  I harp on this point because it's unambiguous evidence that at
least one federal judge not only doesn't buy "copyright-based license"
but won't even give it the time of day.

Acknowledgement: Michael K. Edwards.


(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.)

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