Re: Tom Tom and Microsofts Linux patent lock-down ..

[Hyman Rosen]

Rjack wrote:
> "The GPL is unenforceable under U.S. copyright law".
> So far, the GPL has never been interpreted under U.S. copyright
> law as applied through the application of state contract (common
> law) by a U.S. court.
> Ten thousand voluntary dismissals will not settle
> the question of the *legal enforceability* of the GPL -- only a
> court ruling on the specific GPL terms will settle that question.

That's actually a very reasonable position, if you're interested
in the abstract legal question. However, most court cases are not
brought for abstract legal edification but to accomplish a goal.
In the cases brought by the SFLC, the goal is to obtain compliance
with the GPL, and that goal has been accomplished each time. It
has always been the position of the FSF that the GPL is so obviously
enforceable that cases will probably never go all the way to a
ruling, because defendants have the choice of rejecting the GPL and
then having no distribution rights or accepting the GPL and then
needing to explain why they don't honor it, losing both ways.

We do have the MySQL case
<http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf>,
which, while not a specific ruling that the GPL is enforceable,
does show that the judge read the GPL, understood its terms, and
showed no indication that she thought it was illegal. We also have
the CAFC decision <http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
saying "Copyright holders who engage in open source licensing have
the right to control the modification and distribution of copyrighted
material."

The legalisms you quote are at best general principles which you
hope will apply to the GPL in the way you want, but as you can see
from these two cases, judges appear to be inclined to take these
licenses at face value, treating them as if they mean what they say
and as if they are enforceable. Your abstractions aren't going to
override the perception that an author has the right to control how
his work is used, regardless of the novelty of open source licensing.
Law isn't physics.