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Re: The SFLC dismissals should be coming soon

From: RJack
Subject: Re: The SFLC dismissals should be coming soon
Date: Thu, 18 Feb 2010 16:30:00 -0500
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
On 2/18/2010 2:30 PM, Alexander Terekhov wrote:
Go try making "local changes" regarding and report your results back here

The online distribution of GPLed firmware by Verizon is accompanied by source found at <>.

Verizon also makes source available through the offer of a physical copy for no more than distribution costs ($10) listed on the same page.

The manufacturers of the hardware also make source available at <>, and offer physical copies for $10
 as well.

Your links lead back to an old Actiontec site -- not Verizon. Verizon
received a voluntary dismissal *with prejudice* from the SFLC and
couldn't give a rat's ass less about the SFLC *or* the GPL. I doubt
anyone at Verizon knows who the SFLC is or what the GPL is.

No defendant ever cares about an SFLC lawsuit because any lawsuit filed
by the SFLC is subsequently followed by a plaintiff's voluntary
dismissal. There is a *verifiable* factual cause and effect here. One
hundred percent of the time, the *verifiable* court records reflect a
complaint filed then no further legal action that is subsequently
followed by voluntary dismissal and no settlement agreement. Defendants
know the SFLC lawsuit is all-blow-and-no-go designed to stimulate public
donations to SFLC staff salaries.

All this collateral spin about compliance certainly deflects the focus
away from the fact that the GPL is preempted by the Copyright Act and
unenforceable as a contract.

Professor Robert P. Merges of the Berkeley Law School has noted this
fact in his treatise "The End of Friction? Property Rights and Contract
in the 'Newtonian' World of On-Line Commerce" (12 Berkeley Tech. L.J.
115). He describes the GPL license as legally unenforceable restrictions
on digital works:

"One prominent organization, the Free Software Foundation, promotes this
norm today through the institution of "copyleft," a copyright license
that requires transferees of free software to promise not to incorporate
it in a commercial product and to pass it on, even if embedded in a
larger program, to others free of use restrictions.46

By its own terms, the copyleft agreement is an unusual license; at the
most basic level consider the problem of determining damages when the
licensee frustrates the licensor's expectation of zero profits under the
contract. But what is most significant about the agreement is that it
purports to restrict subsequent transferees who receive software from a
licensee, presumably even if the licensee fails to attach a copy of the
agreement. As this new transferee is not in privity with the original
copyleft licensor, the stipulation seems unenforceable."


**TO ALL FREE SOFTIES**: Please note that Professor Merges correctly
refers to downstream participants as "transferees" and not "licensees".

Even if 17 USC sec 301(a) didn't preempt the GPL, the lack of privity
between "downstream" participants ("all third parties") is absent. There
is a fundamental principle of contract law prohibiting the parties to a
contract from binding nonparties. See, e.g., EEOC v. Waffle House, Inc.,
534 U.S. 279, 294 (2002) ("It goes without saying that a contract cannot
bind a nonparty.").

"Captain Moglen scared them out of the water!"


RJack :)

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