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Re: More FSF hypocrisy

From: Alan Mackenzie
Subject: Re: More FSF hypocrisy
Date: Tue, 24 Mar 2009 23:18:05 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss Rjack <> wrote:
> Alan Mackenzie wrote:
>> In gnu.misc.discuss Rjack <> wrote:
>>> Copyright law as written by Congress is designed to establish
>>> the right to exclude. *ONLY* Congress can create those "in rem"
>>> rights to exclude. See 17 USC section 301(a).
>>> Copyright licenses are designed to waive particular rights to 
>>> exclude so that licensees may use those personam rights granted
>>> by the copyright owner in contractual privity.
>> That's a very strange statement.  The GPL is not so designed; it
>> is designed to "waive particular rights" over any who conform to
>> its requirements, regardless of the contractual privy.  It is
>> thus not a contractual license, since there are no contractual
>> negotiations or handshakes involved.

> I'm sure you would like the GPL to not be a contract but strength of
> desire or belief doesn't make something true. A U.S. court would
> find the GPL to be a contract regardless of what anyone thinks the
> GPL is designed to be:

> "No formal granting of a license is necessary in order to give it
> effect. Any language used by the owner of the
>                                               PATENT
>                                                      or any conduct
> on his part exhibited to another, from which that other may properly
> infer that the owner consents to his use of the patent in making or
> using it, or selling it, upon which the other acts, constitutes a
> license, and a defense to an action for a tort. Whether this
> constitutes a gratuitous license or one for a reasonable
> compensation must, of course, depend upon the circumstances; but the
> relation between the parties thereafter in respect of any suit
> brought must be held to be contractual, and not an unlawful invasion
> of the rights of the owner."; DE FOREST RADIO TEL. CO. V. UNITED
> STATES, 273 U. S. 236 (1927).

Hey, the GPL isn't about patents.  So the above has, at most, tangential
relevance.  But I wasn't talking about the US courts' possible
application of Humpty Dumpty language.  I really don't much care about
whether the GPL is a "contract" in some US American jurisdiction.  I'm
saying that for all reasonable values of the term "contract", the GPL
fails to be one - it lacks all the characteristics of a contractual
relationship, for instance, the meeting of minds, the negotiation, the
passing of something of value in both directions, the definite
"handshake" which finalises it.

>> By your statement, are you trying to show that the GPL isn't
>> really a copyright license, or are you making a historical
>> assertion, that this was the motivation of the original license
>> designers?

> As explained above the intention of the original designers doesn't
> overide settled law except in the minds of a few Freetards who wish
> to moooooooooooooooooooooove the goalposts.

No, I'm asking you what you meant by your paragraph, the one that ends
with "privity".  I'm genuinely puzzled as to what you're trying to say.
Care to elucidate?

> Sincerely,
> Rjack :)

Alan Mackenzie (Nuremberg, Germany).

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