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

From: amicus_curious
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Sat, 4 Apr 2009 15:56:11 -0400

"Rahul Dhesi" <> wrote in message news:gr823h$gkt$
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

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.

Your claim is a little limp, given the fact that the plaintiff did not obtain an injunction. The CAFC essentially said that the author could suffer harm due to things other than direct loss of income, posing that the reputation had a monetary value as well and could thus suffer irreperable harm. But that is very hard to prove and it seems the plaintiff in the case was not even motivated to try to prove it.

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.
I think you are placing too much emphasis on the term "illegal". In the GPL sense, since it is a civil issue, the term is equivalent to "unenforcable" or "invalid" or any other word that boils down to being unable to recover damages.

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