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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: Sat, 04 Apr 2009 15:23:29 -0400
User-agent: Thunderbird (Windows/20090302)

Rahul Dhesi wrote:
Rjack <> writes:

Sure, but the hollering about "GPL is not enforceable" is beside the point....

I am beginning to believe that you *really* don't understand that
a U.S. court will refuse to enforce an illegal contract term against a defendant regardless of whether the defendant agreed to the term or not. What is so hard to grasp concerning the principle that an illegal contract term is construed against the drafter of the contract?

Did you all notice this major shift in Rjack's position?

Previously, he was content to claim that the GPL is merely unenforceable, and the basis of his claim was that the GPL forms a contract, and monetary damages for the breach of this contract would be zero. Rjack, assumed, without any basis in law, that the copyright owner of a GPL-licensed work could get only monetary damages (equalling zero) and never an injunction prohibiting any further copying by the infringer.

1) The licensing fees in the GPL are price fixed a no charge to all
third parties.

2) Here is the prevailing law of the Second Circuit where the the SFLC
files its copyright suits:

"American copyright law, as presently written, does not recognize
moral rights or provide a cause of action for their violation, since
the law seeks to vindicate the economic, rather than the personal,
rights of authors."; Gilliam v. American Broadcasting Companies,
Inc. 538 F.2d 14 (2d Cir. 1976).

Rjack lost the above argument shortly after the CAFC recognized what it called the "economic" interest if a software author wanting
 to enforce the Artistic License.

I know it is extremely difficult for you to understand BUT:

1) The Second Circuit is NOT the CAFC.
2) The Artistic License is NOT the GPL.

So now, according to Rjack, suddenly, the GPL contains illegal terms! In other words, if you try to enforce a provision in the GPL, it's like you are trying to kill somebody, and the courts won't let you.

How "sudden" is Rjacks's claim that the GPL is unenforecable?

Hmmmm... The CAFC was decided August 13, 2008. Here is a partial copy
of an Rjack post to this newsgroup dated 2006-11-22 which is twenty
two months *before* the CAFC decision:

Rui Miguel Silva Seabra wrote:
Qua, 2006-11-22 Ã s 15:05 -0500, rjack escreveu:
. . .
Please be wary of guys who hate the Free Software Foundation . . .

Why be "wary"? Are you afraid of Lux et Veritas?

The GPL is a contract to make a contract. It's uneforceable in all 50
US states under their common law.

Don't fear the trolls. . . expend a little effort on your own behalf
and Google for the terms {   "contract to make a contract"  Corbin   }
then read the court decisions.

Hint: Skip the above step if you are a true blue aficionado of the GPL
as you may well come away disillusioned.

In reality, I began claiming the GPL was unenforceable in 2003.
So please tell us Rahul, why do you think you are entitled to make up
your own facts?

Rjack :)

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