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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 <> wrote:

> Alan Mackenzie wrote:
> [...]
>> >>
>> > 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?


> "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,
> "...
> 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).

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