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Re: the GPL is a license not a contract ..
From: |
Alan Mackenzie |
Subject: |
Re: the GPL is a license not a contract .. |
Date: |
Wed, 11 Mar 2009 18:41:35 +0000 (UTC) |
User-agent: |
tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386)) |
In gnu.misc.discuss Alexander Terekhov <terekhov@web.de> wrote:
> Alan Mackenzie wrote:
> [...]
>> >> http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf
>> > Not really convincing example, Alan.
>> No, I suppose not. An actual court, with an actual judge, ruling
>> explicitly that the GPL is valid - that it doesn't violate competition
> Eh? What are you smoking Alan?
> http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
> "Defendant further argues that the GPL is invalid due to violations of
> Art. 81 of the Treaty establishing the European Community and Section 1
> of the German Antitrust Act (GWB) as it prejudices trade between Member
> States and leads to a restriction on competition.
That is true. This, together with the defendant's other arguments, were
comprehensively rejected by the judge, as you well know.
I suggest you read the judge's first sentence under
"Entscheidungsgruende" ("Argument"):
"Die zulaessige Klage ist zum weit ueberwiegenden Teil begruendet."
(This valid complaint is justified to an overwhelming degree).
> It need not be decided whether, as Defendant argues, the provisions of
> the GPL violate Article 81 EC and Section 1 of the German Antitrust Act
> (GWB), in particular the prohibition against price fixing and of
> predetermining the conditions of secondary contracts in the first
> contract. This would, according to Section 139 of the German Civil Code
> (BGB), result in the invalidity of the entire license agreement with the
> consequence that Defendant would not have a right of use in the software
> at all, so that Plaintiff could file a copyright infringement claim for
> that reason."
> Idiots!
You don't like judges, do you? That argument is perhaps too
sophisticated for you - If the GPL is invalid, then these people
clearly have no license at all to use the software. So it's breach of
copyright whichever way you look at it.
> First off, Section 139 BGB does NOT apply to "standard terms and
> conditions that are subject to Sections 305 et seq. of the German Civil
> Code (BGB)" -- Section *306* (next to 305) applies to "standard terms
> and conditions that are subject to Sections 305 et seq. of the German
> Civil Code (BGB)".
Feel free to get into the BGB, with all its obscure cross referencing
and abstruse formalisms.
> Secondly,
> http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "...
> if the GPL is legally ineffective, the user does not have a license and
> is thus violating copyright law. On the face of it, that sounds
> plausible, but it is not.
It's not only plausible, it's the law, certainly here in Germany. A
judge has so judged.
> If somebody offers software on the Internet for downloading and links
> the download with invalid general terms, he can hardly sue for
> copyright infringement.
I wouldn't know. It's a somewhat hypothetical case.
> Instead, the validity of the standard terms is a matter for the
> software distributor:
Or the judge.
> if he wants to use invalid contractual terms, he bears the risk of
> their use. It would violate equity and good faith if he were allowed
> to sue others merely on the grounds that his license terms were
> invalid."
Maybe it would. But that's somewhat hypothetical, too. The GPL is
valid in Germany, and this has been confirmed by a judge.
> regards,
> alexander.
--
Alan Mackenzie (Nuremberg, Germany).
- Re: the GPL is a license not a contract .., (continued)
- Re: the GPL is a license not a contract .., Alan Mackenzie, 2009/03/11
- Re: the GPL is a license not a contract .., Rjack, 2009/03/11
- Re: the GPL is a license not a contract .., Alan Mackenzie, 2009/03/11
- Re: the GPL is a license not a contract .., Alexander Terekhov, 2009/03/11
- Re: the GPL is a license not a contract .., Alan Mackenzie, 2009/03/11
- Re: the GPL is a license not a contract .., Alexander Terekhov, 2009/03/11
- Re: the GPL is a license not a contract .., Alan Mackenzie, 2009/03/11
- Re: the GPL is a license not a contract .., Alexander Terekhov, 2009/03/11
- Re: the GPL is a license not a contract .., Hyman Rosen, 2009/03/11
- Re: the GPL is a license not a contract .., Alexander Terekhov, 2009/03/11
- Re: the GPL is a license not a contract ..,
Alan Mackenzie <=
- Re: the GPL is a license not a contract .., Alexander Terekhov, 2009/03/11
- Re: the GPL is a license not a contract .., Alan Mackenzie, 2009/03/11
Doogie, go to doctor and take mad Eben with you.. (was: Re: the GPL is a license not a contract ..), Alexander Terekhov, 2009/03/11