Re: Psystar's legal reply brief in response to Apple

[RJack]

On 8/3/2010 8:10 AM, Alexander Terekhov wrote:
> [Snip] Can you see how that would destroy FOSS licenses as any kind
> of protection? Microsoft can afford to do that, but who in FOSS can
> pay for all that? That was what Microsoft did to Lindows, suing them
>  in country after country until they sold out and gave up, even
> though they had, in my view, a winning case on the trademark issue.
>
> What? You never thought of that? Well, somebody on the Dark Side has.
> So you need to think about it too."

So...

The Copyright Act of 1976 states very specifically that copyright
infringement occurs when an "exclusive right is violated":

"§ 501 · Infringement of copyright
(a) Anyone who violates any of the exclusive rights of the copyright
owner as provided by sections 106 through 122 or of the author as
provided in section 106A(a), or who imports copies or phonorecords into
the United States in violation of section 602, is an infringer of the
copyright or right of the author, as the case may be. For purposes of
this chapter (other than section 506), any reference to copyright shall
be deemed to include the rights conferred by section 106A(a). As used in
this subsection, the term “anyone” includes any State, any
instrumentality of a State, and any officer or employee of a State or
instrumentality of a State acting in his or her official capacity. Any
State, and any such instrumentality, officer, or employee, shall be
subject to the provisions of this title in the same manner and to the
same extent as any nongovernmental entity."

The Supreme Court has explained what this means:

"An unlicensed use of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
154-155."; SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S.
417 (1984).

The purported goal of the GPL is stated in the GPL itself:

"These requirements apply to the modified work as a whole. . . Thus, it
is not the intent of this section to claim rights or contest your rights
to work written entirely by you; rather, the intent is to exercise the
right to control the distribution of derivative or collective works
based on the Program."

An exclusive right to distribute a derivative work "as a whole" is
nowhere mentioned in the Copyright Act. I will gladly contribute $10,000
to the favorite charity of any person who can show me where the
Copyright Act grants this purported exclusive right.

This lack of an exclusive right to distribute a derivative work "as a
whole" was explained to PJ and her ilk by Daniel Wallace when Maureen
O'Gara published these facts in Feb. 2004 in Linux Business News.

Six years later, she is still spreading the big lie in the hope that if
you repeat a lie often enough it will magically become the truth. I
suspect PJ is becoming very nervous because several defendants in the
Best Buy et. al. suit have called the SFLC's bluff. A federal court
actually reviewing the GPL on the merits means the death of the GPL.

Sincerely,
RJack :)