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Re: Bye - Bye , open source derivative works litigation

From: RJack
Subject: Re: Bye - Bye , open source derivative works litigation
Date: Thu, 11 Feb 2010 13:37:20 -0500
User-agent: Thunderbird (Windows/20090812)

David Kastrup wrote:
Hyman Rosen <> writes:

On 2/11/2010 11:26 AM, RJack wrote:
2) "A Gentlemen's Agreement: Assessing the GNU General Public License and its Adaptation to Linux". Chicago-Kent Journal of Intellectual Property, Vol. 6, p. 213, 2007.
Existing case law surrounding shrinkwrap and browsewrap licenses that use a notice-plus-conduct model suggests that courts would find that the GPL creates an enforceable contract, if a party challenged this point directly.

That's simply nonsensical since the GPL is not on software wrappings
and not clickthrough and not notice-plus-conduct. It would appear that the author of the paper is not familiar with the usual distribution forms.

I stated the papers were interesting to read for legal perspective.
I disagree totally with the author that the courts would find the GPL
to be an enforceable contract. I have forever claimed that the GPL is
a preempted contract (by 17 USC sec. 301(a)). Scholarly legal
speculation is very interesting and may provide insights into how a
court might rule. Until the federal judiciary rules on the
enforceability of the GPL we shall continue to argue our positions.
The man in the flowing black robes is the only guy whose opinion counts
-- if needed a United States Federal Marshal will enforce his ruling.

That's why arguing using case law and court precedent from judges is the
surest ground to stand upon to answer these questions short of an actual
judicial decree.

There is no "by opening this package you signify your acceptance" or
 "by clicking this button you signify your acceptance" or similar.

... However, as long as the requirement of the GPL is clear to both
licensor and licensee before contract formation, then the notice-plus-conduct model contemplated by the GPL operates successfully despite the lack of formal notice in practice. Courts
 will likely hold Linux developers to the same standard as parties
who receive printed forms and choose not to read them. ... Regardless of the interpretation of the GPL as a license or as a contract, the text of the GPL helps to determine its enforceability.

There is no question as to whether the GPL is a "license" OR "contract".
For the past eighty three years, since the Supreme Court ruled in DE
the federal courts have ruled *without exception* that an intellectual
property license IS a contract.

"[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be."; HUTTO v. DAVIS, 454 U.S. 370 (1982).

In a way. The text of the GPL states that it is your own choice whether you accept it or not. So the determination is "no".

"The Captain's scared them out of the water!"


RJack :)

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