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

[Rjack]

amicus_curious wrote:
> "Rahul Dhesi" <c.c.eiftj@XReXXArtif.usenet.us.com> wrote in 
> message news:gmd114$et4$1@blue.rahul.net...
> > "amicus_curious" <ACDC@sti.net> writes:
> >
> > > That seems like the start of a cute trick.  If I make a copy
> > >  from a legitimate source, then it is a legitimate copy that
> > > I can give away.  I cannot copy it, but I can give it away. 
> > > So if I make a million copies directly from the legitimate 
> > > source, I have a million legitimate copies that I can dispose
> > >  of any way that I please, either give them away or sell them
> > >  if I can.  The GPL does not restrict that.
> >
> > An interesting argument that has been made before in these 
> > newsgroups. But not one that anybody ever pleaded as a defense
> >  in an actual lawsuit so far as I can tell. --



> Has any case that could turn on that ever been actually litigated
>  to a verdict?

*EVERY* case filed by the SFLC has alleged violation of sec. 2(b) of
the GPL. Since a copy of the GPL is attached to each complaint
"Defense of License" doesn't need to be affirmatively pleaded by a
defendant.

For example the Cisco complaint states:

"20. Under the Licenses, Plaintiffs grant certain permissions to
other parties to copy, modify and redistribute the programs so long
as those parties satisfy certain conditions. In particular,
Section 2(b) of the GPL, addressing each licensee, states:

You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any part
thereof, to be licensed as a whole at no charge to all third parties
under the terms of this License. . .

26. Upon information and belief, since at least May 12, 2006,
Defendant has distributed to the public copies of Firmware
containing Plaintiff’s Programs in its Infringing Products and
via its website without providing complete and corresponding source
code or an offer for source code as required by the Licenses.
Defendant distributed Plaintiff’s Programs in this manner in
the Firmware for Linksys’ models EFG120, EFG250, NAS200, SPA400,
WAG300N, WAP4400N, WIP300, WMA11B, WRT54GL, WRV200, WRV54G, and
WVC54GC, and in the program Quick-VPN."

ANY meaningful adjudication of an SFLC case by a federal court will
automatically involve determining the enforceability of sec 2(b) of
the GPL under contract and then copyright law.

The SFLC will NEVER, NEVER allow a court to review the enforcibility
of the GPL.

They absolutely KNOW that when a judge reads the requirement, ". . .
licensed as a whole at no charge to all third parties under the
terms of this License" he will rule sec. 2(b) unenforceable --
since a contract cannot possibly bind "all third parties".

Sincerely,
Rjack :)