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Groklaw attacks Alexander

From: Rjack
Subject: Groklaw attacks Alexander
Date: Sun, 23 Aug 2009 10:33:12 -0400
User-agent: Thunderbird (Windows/20090812)

In 2004, Pamela Jones, the Sarah Palin of the software world, smartly
published a bit of brilliant legal analysis and announced to the World
that copyright licenses were not contracts:

“The GPL is a License, Not a Contract, Which is Why the Sky Isn't
Falling”, Sunday, December 14 2003 @ 09:06 PM EST Pamela Jones at

Her reasoning, citing Eben Moglen of the Free Software Foundation, was
that the GPL is a license and not a contract, and therefore not
subject to interpretation under the state common law of fifty
different states thus rendering it infallible in federal

"So when you read people  say  that the GPL is perhaps not enforceable
because you don't sign it or click on a form, or because of a lack of
privity, or because there is a lack of consideration, or some such,
you'll understand that the person misunderstood and thought in terms
of contract law. It's a common error. They don't shoot you at dawn for
not fully understanding the GPL. But at the same time, it's good to
know that the problems people think they see in the GPL generally are
the result of not understanding it, not from any weakness in the GPL
itself." (link supra)

Today the phrase "The GPL is a License, Not a Contract" returns over
14,000 hits in a search using Google and is gospel truth to Free
Software advocates worldwide. There is just one minor problem with her
legal research -- it's utter legal gibberish. For the past 82 years,
since the 1927 Supreme Court decision in De Forest Radio Tel. & Tel.
Co. v. United States, 273 U.S. 236, no federal court at either the
circuit or district level has ever held that a copyright license is
anything any other than a contract interpreted under the state common
law of contracts.

In a recent Groklaw post criticizing Alexander Terekhov she asserted:

"He also claimed that Eben Moglen would never dare to go to court
against Cisco/Linksys/Broadcom or whoever, because he'd lose since his
GPL 'game' was all about bluff. That was in 2004. As you know,
the Software Freedom Law Center has since gone to court successfully
regarding the GPL multiple times, so be aware that his "legal" views
are not accurate, in my view."

The Software Freedom Law Center has, as a propaganda ploy, recently
gone to court seven times and promptly voluntarily dismissed each suit
before a federal judge could ever read a single sentence from one of
their complaints. Now that's snatching "victory" from the jaws of defeat.

FACT: No claim for any relief requested by an S.F.L.C. plaintiff
has ever been granted by a federal court.

Why wouldn't the S.F.L.C. immediately dismiss their frivolous suits?
Can you imagine the look on a district judge's face when he realizes
the plaintiffs are claiming "The GPL is a License, Not a Contract"? If
P.J. had listened to Maureen O'Gara and Daniel Wallace in 2004 instead
of making up her own delusional law, she wouldn't appear to be such an
embarrassing nut-job today. (P.J.'s probably a Birther, so look out


-- "Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006) --

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