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

[RJack]

On 8/7/2010 10:53 PM, ZnU wrote:
> In article<ws-dnffO4pKHQ8DRnZ2dnUVZ_iydnZ2d@giganews.com>,
> RJack<user@example.net>  wrote:
>
> > On 8/7/2010 4:08 PM, ZnU wrote:
> > > In article<4C5DAFA2.317C0E8D@web.de>, Alexander
> > > Terekhov<terekhov@web.de>   wrote:
> > >
> > > > ZnU wrote: [...]
> > > > > nothing particularly strong to favor the opposite position.
> > > > > You've demonstrated that it's possible to fail to create a
> > > > > condition, but have advanced no compelling argument that the
> > > > > GPL, specifically, fails to do so.
> > > >
> > > > Q) I want to create a full blown derivative work (a copy of
> > > > which I may want to distribute later) or a copy verbatim
> > > > (which I may want to distribute later) of the GPL'd work...
> > > > what are the conditions in order to gain the rights to do
> > > > that?
> > > >
> > > > A) None. The GPL has no conditions precedent.
> > > >
> > > > Please prove me wrong.
> > >
> > > I'm not interested in whatever games you want to play with
> > > shifting the burden of proof. In Jacobsen v. Katzer, the
> > > Artistic License was found to establish valid conditions, such
> > > that ignoring them while engaging in actions otherwise not
> > > permitted by copyright law was found to be copyright violation.
> > > You either need to explain a) specifically why the Artistic
> > > License created valid conditions but the GPL did not or b) why I
> > > should believe your opinion over that of a federal court.
> > >
> > > Posting a bunch of general information about conditions vs.
> > > covenants, which is what you keep doing, is not especially
> > > interesting when there is a ruling that appears to have
> > > addressed the issue at hand far more directly.
> >
> > The Artistic License is not the GPL License. Since you wish to
> > eschew researching and reasoning with "general information"
> > perhaps you should explain how you justify generalizing about the
> > Artistic License in relation to the GPL.
> >
> > You are indeed correct that "you are not interested in carrying any
> > burden of proof". You claim the Artistic License generalizes to the
> > GPL but you can't prove it. It is you who are playing games by
> > hypothesizing and then refusing to carry your burden of proof.
>
> You're simply playing games. There is a _huge_ difference between
> reasoning from general principles in the presence of case law that
> apparently _disagrees_ with your conclusions, and using that same
> case law to predict the outcome of an _extremely similar_ case. If
> you believe there is some key difference between the Artistic
> License and GPL that distinguishes these cases, name it.
You've got it backwards again. You're the one claiming the GPL is
enforceable. I claim the GPL doesn't contain a valid condition
precedent. It is your burden to point to the condition precedent in the
GPL that establishes infringement. All you have to do is show what
*event* must be satisfied *before* copyright permissions are granted.
Just show me the condition precedent. Seems simple enough to me.

> Note that the appeals court, in its ruling, talks in fairly general
> terms about "public licenses" and explicitly cites "GNU/Linux" --
> complete with "GNU" -- as an example of software released under such
> a license.
So. the court observed  there are "open source" licenses. So what?
There are also reams of closed source licenses. So what?

> It explicitly raises the issue of whether releasing software under
> such public licenses preserves the right of authors to seek
> copyright remedies and lays out the case that it does.
Ah... A perfect Straw Man. No one is claiming that releasing software
under a "public license" (however that is legally defined) abrogates
copyrights.

So that you can't muddy the water, here is what I claim:

I am claiming that under U.S. law, a copyright license -- all copyright
licenses -- must be legally enforceable contracts under the common law
of the fifty states *as well as* federal copyright law.

I claim that the GPL is legally unenforceable under the common law of
contracts *and* is preempted under federal copyright law.

Sincerely,
RJack :)