Re: Breach of Third-Party Beneficiary Contract, in Florida

[RJack]

Hyman Rosen wrote:
> On 4/20/2010 4:55 PM, Alexander Terekhov wrote:
> > "Breach of Third-Party Beneficiary Contract [1] Elements and Case 
> > Citations (1)   Defendant and a third-party entered a valid 
> > contract; (2)   Plaintiff is not a party to the contract; (3)   The
> >  parties to the contract intended that the contract primarily or 
> > directly benefit plaintiff or a class of parties of which plaintiff
> >  is a member; (4)  The contract is breached; (5)  Plaintiff 
> > suffered damages as a result of the breach.
>
> Why are you describing this? In the U.S., there have been no such 
> suits with respect to the GPL or other open licenses. The GPL itself 
> is not such a license, but even if it were, the only lawsuits have 
> been brought by rights holders.

And the rights holders are excluded as beneficiaries of the GPL
contract. The distribution is to other "all third parties".

"23. Under the License, Mr. Andersen grants certain permissions to other
parties to copy, modify and redistribute BusyBox so long as those
parties satisfy certain conditions. In particular, Section 2(b) of the
License, 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..."

ROFL:

"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"
"to all third parties" "to all third parties"

Every complaint filed by the SFLC is about making source code available
to "all third parties". People who distribute GPL code are *parties* to
the GPL contract and are specifically *excluded* from the class of
beneficiaries designated as "all third parties".

Only members of the class "all third parties" may suffer loss of
benefits (injury) from non-compliance with the GPL terms. That's why
*no* person distributing code under the GPL has Article III standing to
enforce the GPL.

The very *first* thing a contract lawyer is trained to look for in a
contract dispute is "who benefits"? If no benefit is directed to a party
then that party can suffer no injury from a contract breach.


Samsung Answer:
                        FIFTEENTH AFFIRMATIVE DEFENSE
                           (Lack of Standing)
50. As a further, separate and distinct Fifteenth Affirmative Defense to
the Complaint and each claim for relief alleged therein, Defendant
alleges that Plaintiffs lack standing to sue Defendant for copyright
infringement.


Best Answer:
                        SECOND AFFIRMATIVE DEFENSE
37. Plaintiffs lack standing.


Humax Answer:
                        SECOND AFFIRMATIVE DEFENSE (Lack Of Standing)
37. Either or both Plaintiffs lack standing to bring the claims alleged
in the Complaint.


JVC Answer:
                        As And For A Second Defense
37. Plaintiffs’ claims are barred, in whole or in part, because
Plaintiffs lack standing to assert them.


Western Digital Answer:
                        TENTH DEFENSE (STANDING)
46. Upon information and belief, Plaintiffs lack standing.


There certainly are a lot of GPL crank lawyers who don't think the
plaintiffs have standing.

Sincerely,
RJack :)