Re: German-GPL victorious in Frankfurt district court

[Alexander Terekhov]

Anonymous still tries to appeal to intellect...

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GPL validity isn't a package deal
Authored by: Anonymous on Saturday, September 23 2006 @ 05:03 AM EDT

The parties have already agreed between them that the distributor can distribute
the software. The distributor now argues that one of the obligations is unfair,
illegal, unenforceable or whatever. That's why they get the judge to decide
whether that's true or not.

If the judge holds that one clause is invalid, but the rest is valid, then the
license stands - minus that one clause. The licensor can't then just revoke the
license. He granted it, the other party relied on it, it would be unfair if the
licensor could then suddenly "pull the rug from under him" because of
the licensor's mistake.

"Oops, sorry, we put the wrong stamp in your driver's license. Oh and by
the way here's ten years worth of tickets for driving without a license."
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regards,
alexander.


Alexander Terekhov wrote:
> 
> And here comes the GPL girl.
> 
> http://www.groklaw.net/article.php?story=20060922134536257
> 
> Well, there's a somewhat refreshing comment. (Anonymous != terekhov)
> 
> -------
> GPL validity isn't a package deal
> Authored by: Anonymous on Friday, September 22 2006 @ 05:24 PM EDT
> 
> "Even if you could prove the license wasn't legal or binding, you gain
> nothing, because you thereby lose all rights to distribute. Some seem
> to think they get to misappropriate the code if they could just get
> that pesky GPL out of the way. Nope. It's a package deal."
> 
> It's not a package deal. A license can have one clause that's held to be
> invalid while the rest is upheld. Some jurisdictions only allow this when
> the license has an explicit severability clause, others automatically
> apply such clauses.
> 
> In the case of a copyright license, the argument would be
> 
> 1) the grant of rights is legally valid
> 2) the obligation to make source available is unenforceable because of
> $REASON
> 3) one unenforceable clause does not invalidate the whole license
> 4) therefore I'm not held to that obligation yet I have a valid grant
> of rights
> 
> The $64,000 question of course is what $REASON could be when the license
> is the GPL.
> 
> The usual starting point for lawyers is stating that something is
> against antitrust law or misuse of copyright. The D-Link lawyers didn't
> say *the GPL* is against antitrust law, but only that *the licensee's
> obligations* under the GPL were unfair.
> -------
> 
> regards,
> alexander.