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Re: Tom Tom and Microsofts Linux patent lock-down ..

From: Rjack
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Tue, 17 Mar 2009 14:32:21 -0400
User-agent: Thunderbird (Windows/20081209)

Hyman Rosen wrote:
Rjack wrote:
"The GPL is unenforceable under U.S. copyright law". So far, the GPL has never been interpreted under U.S. copyright law as
 applied through the application of state contract (common law)
by a U.S. court. Ten thousand voluntary dismissals will not settle the question of the *legal enforceability* of the GPL --
 only a court ruling on the specific GPL terms will settle that

That's actually a very reasonable position, if you're interested in the abstract legal question.

There go the goalposts! You wish to minimize my assertion. Let
me repeat. "The GPL is unenforceable under U.S. copyright law".
Your reference to "abstract legal questions" is nonsense. The real
world applies "abstract legal priciples" to real cases all the time.

However, most court cases are not brought for abstract legal edification but to accomplish a goal. In the cases brought by the SFLC, the goal is to obtain compliance with the GPL, and that goal has been accomplished each time.

I differ concerning SFLC motivations but that does not change the
central thrust of my posts -- "The GPL is unenforceable under U.S.
copyright law". Your "means justify the ends" argument is simply an
attempt to divert the focus from my claim.

It has always been the position of the FSF that the GPL is so obviously enforceable that cases will probably never go all the way to a ruling, because defendants have the choice of rejecting
 the GPL and then having no distribution rights or accepting the
 GPL and then needing to explain why they don't honor it, losing
 both ways.

It has also has always been the position of the FSF that the "GPL is
a license not a contract". That particular claim is the lynchpin
underlying the FSF theory of legal GPL enforcement.

That claim has been completely debunked under long established
tenets of U.S. law. Only a few GNU flat-earthers still chant
the mantra "a license is not a contract". Why would anyone listen
to or care "what the position of the FSF is" when they see the
claimed legal foundation for GPL enforceability is nonsense?

We do have the MySQL case <>,
 which, while not a specific ruling that the GPL is enforceable,
 does show that the judge read the GPL, understood its terms, and
 showed no indication that she thought it was illegal.

The phrase "while not a specific ruling that the GPL is enforceable"
is the most rational statement you've made. Wouldn't it be much
more forthright to simply admit the GPL has never been ruled
enforceable in a U.S. court?

We also have the CAFC decision <> saying "Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted

Now that's a generally true statement Hymen. A properly drafted open
source license *is* enforceable. Copyright law grants exclusive
rights to original authors. So what's new? Does that mean that *any*
open source license whatsoever is enforceable? Of course not.
The assertion that all open source licenses no matter how they are
drafted is enforceable is absurd.

The legalisms you quote are at best general principles which you hope will apply to the GPL in the way you want, but as you can see from these two cases, judges appear to be inclined to take these licenses at face value, treating them as if they mean what
 they say and as if they are enforceable.

Neither of those judges even remotely mentioned the contractual
interpretation of the terms of the GPL. Your imagination is running

Your abstractions aren't going to override the perception that an
 author has the right to control how his work is used, regardless
 of the novelty of open source licensing.

The assertion an author can do "anything he pleases" because of
copyright law is absurd.

Law isn't physics.

Yep. And bullshit walks while money talks. I re-assert my claim that
the GPL is unenforceable under U.S. law. I back those claims with
citations to U.S. legal authority. You're free to use all the
rhetorical non-legal arguments you wish...

Rjack :)

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