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Re: Recommendation for a CL data structures library

From: Alexander Terekhov
Subject: Re: Recommendation for a CL data structures library
Date: Tue, 04 May 2010 16:11:23 -0000

David Kastrup wrote:
> Alexander Terekhov <> writes:
> > David Kastrup wrote:
> > [...]
> >> The whole point of the GPL as a license rather than a contract is
> >
> > Dak, please stop ignoring the facts:
> >
> > It's established by several courts in Germany that the GPL is an AGB
> > contract.
> >
> >
> >
> > "The GPL grants anyone who enters into such contract with the licensor
> > the right to copy, ..."
> Germany might call things different, but you still have the situation
> that a contractual arrangement to which one party has not given its
> implicit or explicit consent differs in the details of execution and
> enforcement.
> For one thing, the license can't stipulate contractual penalties for
> non-conformance.

"SCO's GPL violations entitle IBM to at least nominal damages on the 
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC 
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled" that 
nominal damages are recoverable upon breach of contract); Kronos, Inc. 
v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages are 
always available in breach of contract action".). Thus, SCO's footnoted 
damages argument is no basis for summary judgment as to liability. 
Moreover, IBM has proffered expert evidence that it was financially 
damaged by SCO's violations of the GPL.

First, as IBM expert Professor J. R. Kearl will testify at trial, 
under the methodology of SCO's own experts (offered in support of 
SCO's affirmative case), IBM has suffered quantifiable damages 
resulting from SCO's wrongful conduct, including its GPL violations. 
(¶ 28; Ex. 591 ¶¶ 1.C, 33-34.) "

> >
> >
> > "To begin with, the Panel has no doubt whatsoever that the general
> > business conditions have been effectively incorporated into a possible
> > contractual relationship between the defendant and the plaintiff
> > pursuant to German Civil Code Section 305 Para. 2.  "
> "into a possible": the court says that _if_ one stipulates a contractual
> relationship, _then_ the GPL spells the conditions.

"The Panel considers the license conditions to be general business
conditions which are to be examined under application of German Civil
Code Sections 305 et seqq. "

In the original it says

"Die Kammer stuft die Lizenzbedingungen als allgemeine
Geschäftsbedingungen ein, die einer Prüfung nach §§ 305 ff. BGB zu
unterziehen sind. "


"Section 305

Incorporation of standard business terms into the contract

(1) Standard business terms are all contract terms pre-formulated for
more than two contracts which one party to the contract (the user)
presents to the other party upon the entering into of the contract. It
is irrelevant whether the provisions take the form of a physically
separate part of a contract or are made part of the contractual document
itself, what their volume is, what typeface or font is used for them and
what form the contract takes. Contract terms do not become standard
business terms to the extent that they have been negotiated in detail
between the parties.

(2) Standard business terms only become a part of a contract if the
user, when entering into the contract,

1. refers the other party to the contract to them explicitly or, where
explicit reference, due to the way in which the contract is entered
into, is possible only with disproportionate difficulty, by posting a
clearly visible notice at the place where the contract is entered into,

2. gives the other party to the contract, in an acceptable manner, which
also takes into reasonable account any physical handicap of the other
party to the contract that is discernible to the user, the opportunity
to take notice of their contents,

and if the other party to the contract agrees to their applying.

(3) The parties to the contract may, while complying with the
requirements set out in subsection (2) above, agree in advance that
specific standard business terms are to govern a specific type of legal
transaction.  "


"The GPL grants anyone who enters into such contract with the licensor
the right to copy, . . .

Plaintiff, or the licensors from whom Plaintiff derives his right, have
not violated any contractual obligations themselves. Rather, Defendant,
who violated contractual obligations, relies on rights granted by
contract. "


P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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