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Re: Artifex v. Diebold: "The GPL is non-commercial!"


From: Rjack
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Tue, 02 Dec 2008 09:35:01 -0500
User-agent: Thunderbird 2.0.0.17 (Windows/20080914)

Hyman Rosen wrote:

Now, a complaint may say anything at all. Artifex's statement is
not how licensing under the GPL is properly understood, but there
is nothing that can be done to prevent them from saying whatever
they want.

Quite true.

Now the rubber meets the road for Artifex. The burden is on Artifex
to demonstrate the validity of the GPL and that its scope has been
violated by Diebold.

"Copyright disputes involving only the scope of the alleged
infringer's license present the court with a question that
essentially is one of contract: whether the parties' license
agreement encompasses the defendant's activities. Just as in an
ordinary contract action, the party claiming a breach carries the
burden of persuasion." Bourne v. Walt Disney Co., 68 F.3d 621, (2d
Cir. 1995).

This is something Eben Moglen has *never* done -- cite prevailing
federal law that supports the validity of the GPL. Diebold knows
"there is nothing that can be done to prevent them [Artifex] from
saying whatever they want" in their complaint. Diebold can now claim
copyright misuse, GPL preemption and contractual impossibility and
then set back and watch Artifex be forced to actually cite
prevailing law that supports Artifex's specious claims -- something
no GPL supporter has ever been capable of doing.

Sincerely,
Rjack :)


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