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

[Rjack]

Rahul Dhesi wrote:
> Rjack <user@example.net> 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?

Sincerely,
Rjack :)