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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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