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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Wed, 25 Mar 2009 13:38:38 +0100

Alan Mackenzie wrote:
> You might have meant this as a definitional criterion for a copyright
> license, asserting that the GPL, since it doesn't satisfy that criterion,
> isn't a copyright license at all.  (The bit of the condition it doesn't
> satisfy is the "in contractual privity").

The doctrine of privity in contract law provides that a contract cannot
confer rights or impose obligations arising under it on any person or
agent except the parties to it, stupid. Third-party beneficiaries aside,
the premise is that only parties to contracts should be able to sue to
enforce their rights or claim damages as such.

>From IBM lawyers:

"SCO's GPL violations entitle IBM to at least nominal damages on the
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled" that
nominal damages are recoverable upon breach of contract); Kronos, Inc.
v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages are
always available in breach of contract action".). Thus, SCO's footnoted
damages argument is no basis for summary judgment as to liability.
Moreover, IBM has proffered expert evidence that it was financially
damaged by SCO's violations of the GPL.

First, as IBM expert Professor J. R. Kearl will testify at trial, under
the methodology of SCO's own experts (offered in support of SCO's
affirmative case), IBM has suffered quantifiable damages resulting from
SCO's wrongful conduct, including its GPL violations. (¶ 28; Ex. 591 ¶¶
1.C, 33-34.)"

Do you still have any doubts that the GPL *IS* a contract in the USA,
stupid Alan?

As for Germany...


"The GPL grants anyone who enters into such contract with the licensor"

"Since the conditions of the license granted by the GPL are easily
available on the Internet, they were without a doubt incorporated into
the contractual relationship between the authors and Defendant (Section
305, Subsection 2, No.2 of the German Civil Code (BGB))."

"invalidity of this part of the GPL would also jeopardize the further
development of the software and therefore affect the basic principle of
open source, which is incorporated into the contract by virtue of the
preamble of the GPL (cf. Annex K11)."

"Plaintiff would also be entitled to plead invalidity of the entire

"Plaintiff, or the licensors from whom Plaintiff derives his right, have
not violated any contractual obligations themselves. Rather, Defendant,
who violated contractual obligations, relies on rights granted by

"Plaintiff would not be not barred from claiming invalidity of the
entire contract."

Now count a word "contract" above... what's the result, stupid Alan?



(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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