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Re: 9th Cir. License Primer

From: RJack
Subject: Re: 9th Cir. License Primer
Date: Thu, 24 Mar 2011 15:40:30 -0400
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20110303 Thunderbird/3.1.9

On 3/24/2011 10:51 AM, Alexander Terekhov wrote:
As they say:

"The GPL Is a License, not a Contract."


Seriously, I am very disappointed that Best Buy did not raise the
issue of copyright v. contract breach thus far. The language of Best
Buy's latest filing in 1:09-cv-10155-SAS Software Freedom
Conservancy, Inc. v. Best Buy Co., Inc. et al almost sounds that
Best Buy buys into GPL "condition" moronity... I suppose that they
are sure that they can win even under that "condition" so to speak.
We'll see.

It's all about strategy. The present motion is for a Preliminary
Injunction -- not Summary Judgement. Best Buy is adhering to the
principle espoused in the pleadings -- "The license speaks for itself".
The focus of Best Buy's attorneys is to defeat the motion -- not defeat
the GPL at this point. If Best Buy defeats the motion because it claims
"compliance" with an unenforceable license, the defendant *still wins*.
It is glaringly obvious that Best Buy's attorneys consider GPL "viral"
claims to be complete nonsense. To wit:

1) "...Plaintiffs used their pretended enforcement rights in the entire
BusyBox code, as well as other open source software, to attempt to
extract prior review and veto rights over future models of Insignia
Blu-ray players and firmware releases."

See the: "...*pretended* enforcement rights in the entire BusyBox code..."

2) "...Under that license, anyone can copy or distribute the “Program,”
which at best is Mr. Andersen’s contribution to BusyBox after 2001,
provided that such distributor meets only one of certain conditions..."

See the: "...the 'Program,' *which at best* is Mr. Andersen’s

3) "...Yet, later that same day, Plaintiffs continued to demand source
code for other open source software, and proprietary code, that has
nothing to do with BusyBox."

See the: "...*proprietary code, that has nothing to do with BusyBox*."

4) "...Conservancy demanded that Broadcom include proprietary source
code with the code that would be offered under Paragraph 3 of GPLv2.
Conservancy argued that the particular file in question was a derivative
work of an open source Linux kernel. (Id. at ¶ 12.) But Conservancy does
not have rights to Linux, nor does it have rights to Broadcom’s
proprietary source code. Whether that code was proprietary to Broadcom,
or derivative of Linux open source code, it is completely unrelated to

See the: "...nor does it have rights to Broadcom’s *proprietary source*

RJack :)

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