SFLC is SOL
RJack
fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site.
Excerpt from the Best Buy answer:
. . .
FIRST COUNTERCLAIM
DECLARATORY JUDGMENT OF NON-INFRINGEMENT
9. Best Buy restates and realleges each of the allegations set forth in
the Counterclaim paragraphs 1-8 above.
10. By filing the instant Complaint, Plaintiffs have purported to assert
a claim for copyright infringement by Best Buy of copyrights in BusyBox.
11. Best Buy has not infringed any copyrights in BusyBox.
12. Best Buy is entitled to judgment that it has not infringed any
copyrights in BusyBox.
JURY DEMAND
13. Best Buy requests a jury trial on all issues triable of right by a jury.
PRAYER FOR RELIEF
WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
favor against Plaintiffs/Counterclaimants as follows:
1. Dismissing Plaintiffs� cause of action with prejudice and on the merits;
2. Declaring that Best Buy has not infringed the alleged copyrights in
BusyBox;
3. Awarding Best Buy its costs, including reasonable attorneys� fees,
incurred in connection with this matter; and
4. Awarding such other relief as this Court deems just and equitable.
. . .
This means that the SFLC cannot file a vouluntary dismissal without
the permission of Best Buy Inc.
Sincerely,
RJack :)
David Kastrup
> The SFLC has finally bought itself a shit-load of trouble.
Because defendents write up a defense? That's not really that
remarkable.
> 13. Best Buy requests a jury trial on all issues triable of right by a
> jury.
Juries don't interpret the law but decide on questions of fact finding.
There is not much leeway for finding here as long as plaintiffs did not
ask for punishment of willful violation, but for compliance.
But Best Buy does not state being in compliance, but rather not being
affected by BusyBox copyrights.
> PRAYER FOR RELIEF
>
> WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
> favor against Plaintiffs/Counterclaimants as follows:
> 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits;
> 2. Declaring that Best Buy has not infringed the alleged copyrights in
> BusyBox;
> 3. Awarding Best Buy its costs, including reasonable attorneys’ fees,
> incurred in connection with this matter; and
> 4. Awarding such other relief as this Court deems just and equitable.
> . . .
>
> This means that the SFLC cannot file a vouluntary dismissal without
> the permission of Best Buy Inc.
There is no such thing as "filing an unvoluntary dismissal". And of
course, once Best Buy agrees to settle, both parties will file a joint
request for dismissal because of having agreed on settlement terms.
You'll be hollering about "voluntary dismissals" on the side of the SFLC
and foaming at your mouth. But that's the way this stuff works.
--
David Kastrup
Alexander Terekhov
Stores, L.P. and BestBuy.Com, LLC, answers Software Freedom Conservancy,
Inc. and Erik Andersen�s (�Plaintiffs�) Original Complaint (�Complaint�)
as follows:
[... snip answer ...]
COUNTERCLAIMS
Defendant/Counterclaimant Best Buy for its separate counterclaims
against Plaintiffs Software Freedom Conservancy, Inc. and Erik Andersen
states and alleges as follows:
1. This is an action for declaratory judgment, together with such
further relief based thereon as may be necessary or proper, pursuant to
the Federal Declaratory Judgment Act, 28 U.S.C. �� 2201 and 2202. There
is an actual controversy between Best Buy and Plaintiffs arising under
United States copyright laws, Title 17 of the United States Code.
2. The subject matter jurisdiction of this Court is founded upon Title
28, United States Code �� 1331, 1338(a), 2201 and 2202.
3. Best Buy is a Minnesota corporation with its principal place of
business at 7601 Penn Ave. South, Richfield, Minnesota 55423.
4. Software Freedom Conservancy, Inc. alleges that it is a
not-for-profit New York corporation with its principal place of business
at 1995 Broadway, 17th Fl., New York, New York 10023.
5. Erik Andersen alleges that he has a residence in Springville, Utah.
6. Mr. Anderson alleges that he authored, developed and owns the
copyrights in a computer program called �BusyBox.�
7. Software Freedom Conservancy, Inc. alleges that it is a copyright
enforcement agent for Mr. Andersen with respect to BusyBox.
8. Mr. Andersen and Software Freedom Conservancy, Inc. (�Plaintiffs�)
allege that Best Buy has infringed Mr. Andersen�s alleged copyrights in
BusyBox.
FIRST COUNTERCLAIM
DECLARATORY JUDGMENT OF NON-INFRINGEMENT
9. Best Buy restates and realleges each of the allegations set forth in
the Counterclaim paragraphs 1-8 above.
10. By filing the instant Complaint, Plaintiffs have purported to assert
a claim for copyright infringement by Best Buy of copyrights in BusyBox.
11. Best Buy has not infringed any copyrights in BusyBox.
12. Best Buy is entitled to judgment that it has not infringed any
copyrights in BusyBox.
JURY DEMAND
13. Best Buy requests a jury trial on all issues triable of right by a
jury.
PRAYER FOR RELIEF
WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
favor against Plaintiffs/Counterclaimants as follows:
1. Dismissing Plaintiffs� cause of action with prejudice and on the
merits;
2. Declaring that Best Buy has not infringed the alleged copyrights in
BusyBox;
3. Awarding Best Buy its costs, including reasonable attorneys� fees,
incurred in connection with this matter; and
4. Awarding such other relief as this Court deems just and equitable.
Dated: New York, New York Respectfully submitted,
March 8, 2010
/s/ David Leichtman
David Leichtman (DL-7233)
dleic...@rkmc.com"
regards,
alexander.
P.S. "I'm insufficiently motivated to go set up a GNU/Linux system
so that I can do the builds."
Hyman Rosen <hyr...@mail.com> The Silliest GPL 'Advocate'
P.P.S. "Of course correlation implies causation! Without this
fundamental principle, no science would ever make any progress."
Hyman Rosen <hyr...@mail.com> The Silliest GPL 'Advocate'
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
Alexander Terekhov
2. The GNU General Public License, Version 2, as alleged by Plaintiffs,
is not enforceable."
3. On information and belief, plaintiffs are not proper parties."
Alexander Terekhov
contained therein are illegal, unconscionable and barred by public
policy as well as by
statutory and case law."
Exactly.
"FOURTH AFFIRMATIVE DEFENSE
(INDISPENSABLE PARTIES)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because
there are indispensable parties that have not been joined in this
lawsuit, including the other
authors and/or owners of the alleged copyright at issue.
FIFTH AFFIRMATIVE DEFENSE
(UNCLEAN HANDS)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE
(NO STATUTORY DAMAGES)
On information and belief, Defendant alleges that Plaintiffs� claims for
statutory damages
are barred because they did not obtain a valid copyright registration
prior to the beginning of the
alleged infringement and has otherwise not complied with the statutory
prerequisites for such an
award.
SEVENTH AFFIRMATIVE DEFENSE
(STATUTE OF LIMITATIONS)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
applicable statute of limitations.
EIGHTH AFFIRMATIVE DEFENSE
(LACHES)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of laches.
807159v2 012659.0101 10
NINTH AFFIRMATIVE DEFENSE
(WAIVER)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of waiver.
TENTH AFFIRMATIVE DEFENSE
(ESTOPPEL)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of estoppel.
ELEVENTH AFFIRMATIVE DEFENSE
(ACQUIESCENCE)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of acquiescence.
TWELFTH AFFIRMATIVE DEFENSE
(CONSENT)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the
doctrine of consent.
THIRTEENTH AFFIRMATIVE DEFENSE
(COSTS AND ATTORNEYS� FEES)
On information and belief, Defendant alleges that Plaintiffs� prayer for
costs and
attorneys� fees is barred because Plaintiffs do not meet the statutory
prerequisites of the
Copyright Act for such an award and cannot prove the requisite state of
mind or culpability on
the part of Defendant.
807159v2 012659.0101 11
FOURTEENTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because
any and all obligations Defendant may have had under the alleged license
agreement at issue in
this case were excused by the material breaches of the agreement by
Plaintiffs.
FIFTEENTH AFFIRMATIVE DEFENSE
(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred, limited
and/or excluded on the grounds that the alleged license at issue in this
case and/or certain
provisions contained therein are illegal, unconscionable and barred by
public policy as well as by
statutory and case law.
SIXTEENTH AFFIRMATIVE DEFENSE
(LACK AND/OR FAILURE OF CONSIDERATION)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because
Defendant�s performance of any obligations with respect to the alleged
license at issue in this
action have been excused by lack and/or material failure of
consideration on the part of Plaintiffs
with respect to that license.
SEVENTEENTH AFFIRMATIVE DEFENSE
(RESERVATION OF RIGHT TO ASSERT ADDITIONAL AFFIRMATIVE DEFENSES)
Defendant has insufficient knowledge or information upon which to form a
belief as to
whether Defendant may have additional and yet unstated affirmative
defenses available.
Defendant reserves its right to amend this answer and assert additional
affirmative defenses as
warranted by discovery and further investigation to which other
affirmative defenses may apply."
David Kastrup
> "the alleged license at issue in this case and/or certain provisions
> contained therein are illegal, unconscionable and barred by public
> policy as well as by statutory and case law."
They'll have a fun time
a) proving that statement
b) telling the court what other permission short of "the alleged
license" they have for copying and distribution.
That's pretty much the usual clueless first response.
> Exactly.
Which is why it is hailed by our usual clueless first responders. Now
we'll just have to wait for the huzzahs when both parties file for
dismissal in the course of which the sources are made available under
the GPL (never mind how illegal, unconscionable and whatever else that
would be). Or until the court actually issues a ruling, and we'll get
the usual hissy fits here about "drunken judges" and claims that they
are in conflict with the Superior Court or whatever other histrionics we
are used to seeing from our resident cranks.
--
David Kastrup
Alexander Terekhov
(JOINT OWNERSHIP)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because other third parties jointly created the alleged copyright
at issue and those third parties are joint copyright owners of the
alleged copyright at issue in this action.
FOURTH AFFIRMATIVE DEFENSE
(INDISPENSABLE PARTIES)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because there are indispensable parties that have not been joined
in this lawsuit, including the other authors and/or owners of the
alleged copyright at issue."
regards,
David Kastrup
> "THIRD AFFIRMATIVE DEFENSE
> (JOINT OWNERSHIP)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred because other third parties jointly created the alleged copyright
> at issue and those third parties are joint copyright owners of the
> alleged copyright at issue in this action.
That could be a defense if both
a) all copyrighted portions were of joint copyright ownership
b) defendants could show having permission from other joint copyright
owners
> FOURTH AFFIRMATIVE DEFENSE
> (INDISPENSABLE PARTIES)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred because there are indispensable parties that have not been joined
> in this lawsuit, including the other authors and/or owners of the
> alleged copyright at issue."
Again, that requires that all copyrighted portions are of joint
copyright ownership.
As I said: we'll get our resident cranks to post all court filings of
the defendants under "huzzah! yes!", all filings of plaintiffs under
"LOL!", celebrate coming the defendants under compliance and a filed
settlement as a defeat of the plaintiffs, and a prospective court ruling
(if the defendants don't get a clue in time for the verdict) as absurd,
the product of drunk judges and in conflict with the Supreme Court or
whoever else.
It's not like we have not seen this spectacle before. And time and
again.
--
David Kastrup
Alexander Terekhov
RJack wrote:
>
> The SFLC has finally bought itself a shit-load of trouble. Five of
> fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site.
It's actually more than five in the meantime:
03/08/2010 62 ANSWER to Complaint with JURY DEMAND. Document filed by
Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered:
03/08/2010)
03/08/2010 64 ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM
against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman,
David) (Entered: 03/08/2010)
03/08/2010 66 ANSWER to Complaint with JURY DEMAND. Document filed by
Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010)
03/08/2010 67 ANSWER to Complaint. Document filed by Robert Bosch
LLC.(Roth, Judith) (Entered: 03/08/2010)
03/08/2010 70 ANSWER to Complaint. Document filed by JVC Americas
Corporation.(Yohai, David) (Entered: 03/08/2010)
03/08/2010 73 ANSWER to Complaint. Document filed by Dobbs-Stanford
Corporation.(Heinrich, Justin) (Entered: 03/08/2010)
03/08/2010 75 ANSWER to Complaint with JURY DEMAND. Document filed by
Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch,
Emily) (Entered: 03/08/2010 76 ANSWER to Complaint with JURY DEMAND.
Document filed by Astak Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010)
03/08/2010 77 ANSWER to Complaint with JURY DEMAND. Document filed by
ZYXEL Communications Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010)
03/08/2010 78 ANSWER to Complaint with JURY DEMAND. Document filed by
Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010)
03/08/2010 79 ANSWER to Complaint with JURY DEMAND. Document filed by
Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010)
Chris Ahlstrom
> Alexander Terekhov <tere...@web.de> writes:
Have you ever timed these rjack/terekhov irruptions to determine
if they coincide with any natural cycles?
--
I'll burn my books.
-- Christopher Marlowe
Alexander Terekhov
constitute a misuse of the copyright."
"Plaintiffs� claims are barred or limited because this action was
brought in bad faith and with an improper purpose to burden, harass and
oppress Defendant."
RJack
> Alexander Terekhov <tere...@web.de> writes:
>
>> "the alleged license at issue in this case and/or certain
>> provisions contained therein are illegal, unconscionable and barred
>> by public policy as well as by statutory and case law."
>
> They'll have a fun time
>
> a) proving that statement
>
> b) telling the court what other permission short of "the alleged
> license" they have for copying and distribution.
>
a) The court will immediately find the GPL unenforceable because of the
preemption doctrine established by 17 USC sec. 301(a).
b) They'll tell the court that the doctrine of promissory estoppel applies.
Unlike many GNUtians, the court won't pretend that neither doctrine exists.
> That's pretty much the usual clueless first response.
Mindless denial is always a GNUtians first response.
Sincerely,
RJack :)
RJack
> "THIRD AFFIRMATIVE DEFENSE (JOINT OWNERSHIP)
>
> are barred because other third parties jointly created the alleged
> copyright at issue and those third parties are joint copyright owners
> of the alleged copyright at issue in this action.
>
> FOURTH AFFIRMATIVE DEFENSE (INDISPENSABLE PARTIES)
>
> are barred because there are indispensable parties that have not been
> joined in this lawsuit, including the other authors and/or owners of
> the alleged copyright at issue."
>
Actually BusyBox is a thousand headed Hydra of derivative work - joint
work compilations. After ten thousand patches BusyBox is a huge kettle
of spaghetti code with fifty authors that is so entangled that even
Humpty Dumpty's maintainers can never untangle it again.
Sincerely,
RJack :)
RJack
> David Kastrup pulled this Usenet boner:
>
>> Alexander Terekhov <tere...@web.de> writes:
>
> Have you ever timed these rjack/terekhov irruptions to determine if
> they coincide with any natural cycles?
>
Actually, there are certain natural cycles of moaning and grunting that
GNUtians express when RJack/Terekhov erupt in them.
Bend over Chris and feel the joy.
Sincerely,
RJack :)
Alexander Terekhov
RJack wrote:
[...]
> b) They'll tell the court that the doctrine of promissory estoppel applies.
That's Versa's tenth defense.
"TENTH AFFIRMATIVE DEFENSE
(ESTOPPEL)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred by the doctrine of estoppel."
I also like
"FOURTEENTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because any and all obligations Defendant may have had under the
alleged license agreement at issue in this case were excused by the
material breaches of the agreement by Plaintiffs."
"SIXTEENTH AFFIRMATIVE DEFENSE
(LACK AND/OR FAILURE OF CONSIDERATION)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because Defendant�s performance of any obligations with respect
to the alleged license at issue in this action have been excused by lack
and/or material failure of consideration on the part of Plaintiffs with
respect to that license."
Oh poor SFLC...
David Kastrup
> "Plaintiffs are not entitled to the relief sought because their
> actions constitute a misuse of the copyright."
>
> "Plaintiffs’ claims are barred or limited because this action was
> brought in bad faith and with an improper purpose to burden, harass
> and oppress Defendant."
That's the defendants' song right now. We'll see how much will remain.
It is my guess that in spite of "misuse", "harrassment", "oppression"
and other flowery characterizations, a few weeks after the case closes
down, the GPLed sources will be made available by the defendants, and
our local cranks will celebrate that as a victory of the defendants.
--
David Kastrup
David Kastrup
> RJack wrote:
> [...]
>> b) They'll tell the court that the doctrine of promissory estoppel applies.
>
> That's Versa's tenth defense.
>
> "TENTH AFFIRMATIVE DEFENSE
> (ESTOPPEL)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred by the doctrine of estoppel."
Yeah, that one is hilarious as well. "Dear court, how could we assume
that we had license conditions to heed when making use of a license?
They promised we could use their software under GPL, that certainly must
be enough to stop them from asking us to heed it."
We'll see how much of the defendants beliefs survives in court.
--
David Kastrup
RJack
> We'll see how much of the defendants beliefs survives in court.
You betch'a. No more voluntary dismissals. That's all that real folks
have ever asked for -- a court ruling concerning the GPL on the merits.
So, hopefully, we'll really see.
Sincerely,
RJack :)
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > RJack wrote:
> > [...]
> >> b) They'll tell the court that the doctrine of promissory estoppel applies.
> >
> > That's Versa's tenth defense.
> >
> > "TENTH AFFIRMATIVE DEFENSE
> > (ESTOPPEL)
> >
> > On information and belief, Defendant alleges that Plaintiffs’ claims are
> > barred by the doctrine of estoppel."
>
> Yeah, that one is hilarious as well. "Dear court, how could we assume
> that we had license conditions to heed when making use of a license?
> They promised we could use their software under GPL, that certainly must
> be enough to stop them from asking us to heed it."
"Asking us to heed it" is a contract claim, not copyright infringement
claim you silly.
By filing copyright infringement claim the licensor materially breaches
his obligation/consideration (i.e. obligation not to sue for
infringment) in a license agreement.
"FOURTEENTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH)
On information and belief, Defendant alleges that Plaintiffs� claims are
barred because any and all obligations Defendant may have had under the
alleged license agreement at issue in this case were excused by the
material breaches of the agreement by Plaintiffs."
"SIXTEENTH AFFIRMATIVE DEFENSE
(LACK AND/OR FAILURE OF CONSIDERATION)
On information and belief, Defendant alleges that Plaintiffs� claims are
Alexander Terekhov
David Kastrup wrote:
[...]
> > This means that the SFLC cannot file a vouluntary dismissal without
> > the permission of Best Buy Inc.
>
> There is no such thing as "filing an unvoluntary dismissal".
Uh retard dak.
http://en.wikipedia.org/wiki/Involuntary_dismissal
"Involuntary dismissal is the termination of a court case despite the
plaintiff's objection.
In United States Federal courts, involuntary dismissal is governed by
Federal Rules of Civil Procedure (FRCP) Rule 41(b).
Involuntary dismissal is made by a defendant through a motion for
dismissal, on grounds that plaintiff is not prosecuting the case, is not
complying with a court order, or to comply with the Federal Rules of
Civil Procedure.
Involuntary dismissal can also be made by order of the judge when no
defendant has made a motion to dismiss. Involuntary dismissal is a
punishment that courts may use when a party to a case is not acting
properly. Other punishments are found in FRCP Rule 11, Federal Rules of
Appellate Procedure Rule 38, sections 1927 and 1912 of Title 28 United
States Code, and inherent powers of the court.
Involuntary dismissal bars the case from being brought to court again,
unless the judge says otherwise.
State court rules may be different than the Federal rules and vary from
state to state.
Full Text of FRCP 41(b):
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff
to prosecute or to comply with these rules or any order of court, a
defendant may move for dismissal of an action or of any claim against
the defendant. Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal not
provided for in the rules, other than a dimissal for lack of
jurisidicition, for improper venue, or for failure to join a party under
Rule 19, operates as an adjudication on the merits. "
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > RJack wrote:
>> > [...]
>> >> b) They'll tell the court that the doctrine of promissory estoppel applies.
>> >
>> > That's Versa's tenth defense.
>> >
>> > "TENTH AFFIRMATIVE DEFENSE
>> > (ESTOPPEL)
>> >
>> > On information and belief, Defendant alleges that Plaintiffs’ claims are
>> > barred by the doctrine of estoppel."
>>
>> Yeah, that one is hilarious as well. "Dear court, how could we assume
>> that we had license conditions to heed when making use of a license?
>> They promised we could use their software under GPL, that certainly must
>> be enough to stop them from asking us to heed it."
>
> "Asking us to heed it" is a contract claim, not copyright infringement
> claim you silly.
>
> By filing copyright infringement claim the licensor materially breaches
> his obligation/consideration (i.e. obligation not to sue for
> infringment) in a license agreement.
A licensor has an obligation not to sue for infringement when the
license terms are breached?
That's a funny world you are living in.
--
David Kastrup
David Kastrup
> David Kastrup wrote:
> [...]
>> > This means that the SFLC cannot file a vouluntary dismissal without
>> > the permission of Best Buy Inc.
>>
>> There is no such thing as "filing an unvoluntary dismissal".
>
> Uh retard dak.
>
> http://en.wikipedia.org/wiki/Involuntary_dismissal
>
> "Involuntary dismissal is the termination of a court case despite the
> plaintiff's objection.
And just how (and why) would a plaintiff actually _file_ an involuntary
dismissal? I never said there _was_ no such thing as an involuntary
dismissal, but it certainly can't be _filed_ by a party.
--
David Kastrup
David Kastrup
> David Kastrup wrote:
>
>> We'll see how much of the defendants beliefs survives in court.
>
> You betch'a. No more voluntary dismissals. That's all that real folks
> have ever asked for -- a court ruling concerning the GPL on the merits.
You won't see that this time either. If we make it through an actual
court ruling, the outcome will be either that there was copying without
permission (which is a ruling on the merits of copyright), or that the
defendants would do better to come into compliance with any purported
license they claim to have been given, GPL or not.
Or a defendant can show that he is not in fact distributing the
software.
> So, hopefully, we'll really see.
The topic will be "copyright". The GPL is what helps the defendants out
of the court, not what brings them into it.
So it is not likely there will be much to see.
--
David Kastrup
RJack
Breached? BREACHED? As in "breach of contract" as contrasted with
"copyright infringement"?
Sincerely,
RJack :)
RJack
If you are so smart at interpreting the Federal Rules of Civil
Procedure, why are you so dumb at grasping doctrines like preemption
and promissory estoppel?
Could it be that you actually know the GPL is preempted and thus GPL
code is quasi-public domain due to promissory estoppel? Perhaps your
feigned ignorance is just stubbornness (like Hyman Rosen)?
Sincerely,
RJack :)
RJack
Once the GPL is invalidated, promissory estoppel will allow some
proprietary company to improve Linux and turn it into a real operating
system. Microsoft hates the thought that folks will understand the GPL
is unenforceable. That's the reason Microsoft embraced the GPL -- it
suppressed new competition.
Perhaps the Linux kernel will continue to be improved under a free (free
as in freedom) license such as BSD or Apache.
Sincerely,
RJack :)
Alexander Terekhov
Defendant is also a party, oh paragon of GNU intellegence dak. Such
filing is called "a motion for involuntary dismissal" v. "a motion for
voluntary dismissal". Got it now, uh silly dak.
David Kastrup
> If you are so smart at interpreting the Federal Rules of Civil
> Procedure, why are you so dumb at grasping doctrines like preemption
> and promissory estoppel?
They don't apply where there is no preemption and no promissory
estoppel.
> Could it be that you actually know the GPL is preempted and thus GPL
> code is quasi-public domain due to promissory estoppel?
If the GPL is invalid, there is no other license for copying and
modification. It is nonsensical to at once claim it being invalid, then
using "promissory estoppel" claims as an excuse to take its permissions
without heeding the conditions under which they are given.
You can't pull it out of your hat only when you need it and ignore it
otherwise.
> Perhaps your feigned ignorance is just stubbornness (like Hyman
> Rosen)?
There is no ignorance feigned. If repeating obvious statements to
cranks purporting not to get them is "stubbornness", I might be guilty
of that.
--
David Kastrup
David Kastrup
You should keep away from the keyboard during your wet dreams.
--
David Kastrup
RJack
Ahhh... I tried to give you the benefit of doubt. So... it really is
true ignorance and not feigned ignorance. Nothing to be particularly
proud of is it DAK?
Sincerely,
RJack :)
RJack
Never happen. Your pear shaped, delectable butt is always on one's
mind. Arrrrrrrrrrrrrrrgh...
Sincerely,
RJack :)
Hyman Rosen
> a) The court will immediately find the GPL unenforceable because of the
> preemption doctrine established by 17 USC sec. 301(a).
Preemption has nothing to do with the GPL, since this is
a case of normal copyright infringement brought under the
federal copyright law.
> b) They'll tell the court that the doctrine of promissory estoppel applies.
They may tell the court anything they like, but promissory
estoppel does not apply to GPL-covered code since the license
clearly spells out the conditions under which the code may be
copied and distributed.
Hyman Rosen
> Actually BusyBox is a thousand headed Hydra of derivative work - joint
> work compilations. After ten thousand patches BusyBox is a huge kettle
> of spaghetti code with fifty authors that is so entangled that even
> Humpty Dumpty's maintainers can never untangle it again.
It is not a joint work because all of its authors have
not declared that it it is a joint work. As a derivative
work, any of its authors may file for infringement.
Alan Mackenzie
> Once the GPL is invalidated, promissory estoppel will allow some
> proprietary company to improve Linux and turn it into a real operating
> system. Microsoft hates the thought that folks will understand the GPL
> is unenforceable. That's the reason Microsoft embraced the GPL -- it
> suppressed new competition.
> Perhaps the Linux kernel will continue to be improved under a free
> (free as in freedom) license such as BSD or Apache.
You still don't get it, RJ. The GPL is the most popular free licence,
and that popularity has a reason.
Working on a BSD kernal is so much less popular than working on Linux.
That has a reason, too.
> Sincerely,
> RJack :)
--
Alan Mackenzie (Nuremberg, Germany).
RJack
> On 3/9/2010 7:09 AM, RJack wrote:
>> a) The court will immediately find the GPL unenforceable because of
>> the preemption doctrine established by 17 USC sec. 301(a).
>
> Preemption has nothing to do with the GPL, since this is a case of
> normal copyright infringement brought under the federal copyright
> law.
Uhhh. What's "abnormal" copyright infringement?
>
>> b) They'll tell the court that the doctrine of promissory estoppel
>> applies.
>
> They may tell the court anything they like, but promissory estoppel
> does not apply to GPL-covered code since the license clearly spells
> out the conditions under which the code may be copied and
> distributed.
Uhhh. Do you mean the preempted "covenants" that you incorrectly
refer to as "conditons"? Preempted is preempted. What do conditions
have to do with anything?
Sincerely,
RJack :)
Hyman Rosen
> Oh poor SFLC...
You appear to have very strange beliefs about the legal
system. Aside from your general misunderstanding of
copyright law, you seem to believe that answers and
counterclaims have some magical power merely by being
stated. Proper lawyering always involves throwing up
every possible defense to a suit, plausible or not. If
nothing else, it makes extra work for the other side,
plus any claim not asserted can't be raised later, so
it's important to get everything out immediately.
To an anti-GPL crank, the sun rising in the East is
proof of the failure of the GPL.
RJack
Keep making up your own copyright law Hymen. You're going to need
it soon Mr. Copyleft Man.
ROFL.
Sincerely,
RJack :)
Hyman Rosen
> If you are so smart at interpreting the Federal Rules of Civil
> Procedure, why are you so dumb at grasping doctrines like preemption
> and promissory estoppel?
Neither of those applies to the GPL. Preemption is irrelevant
because GPL claims are filed with respect to infringement of
the exclusive rights of authors as described by federal law.
Promissory estoppel is irrelevant because the GPL clearly
describes the conditions under which covered works may be
copied and distributed.
amicus_curious
"Alexander Terekhov" <tere...@web.de> wrote in message
news:4B9625A2...@web.de...
>
> RJack wrote:
>>
>> The SFLC has finally bought itself a shit-load of trouble. Five of
>> fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site.
>
> It's actually more than five in the meantime:
>
> 03/08/2010 62 ANSWER to Complaint with JURY DEMAND. Document filed by
> Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered:
> 03/08/2010)
> 03/08/2010 64 ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM
> against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman,
> David) (Entered: 03/08/2010)
> 03/08/2010 66 ANSWER to Complaint with JURY DEMAND. Document filed by
> Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010)
> 03/08/2010 67 ANSWER to Complaint. Document filed by Robert Bosch
> LLC.(Roth, Judith) (Entered: 03/08/2010)
> 03/08/2010 70 ANSWER to Complaint. Document filed by JVC Americas
> Corporation.(Yohai, David) (Entered: 03/08/2010)
> 03/08/2010 73 ANSWER to Complaint. Document filed by Dobbs-Stanford
> Corporation.(Heinrich, Justin) (Entered: 03/08/2010)
> 03/08/2010 75 ANSWER to Complaint with JURY DEMAND. Document filed by
> Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch,
> Emily) (Entered: 03/08/2010 76 ANSWER to Complaint with JURY DEMAND.
> Document filed by Astak Inc.. (Attachments: # 1 Certificate of
> Service)(Kirsch, Emily) (Entered: 03/08/2010)
> 03/08/2010 77 ANSWER to Complaint with JURY DEMAND. Document filed by
> ZYXEL Communications Inc.. (Attachments: # 1 Certificate of
> Service)(Kirsch, Emily) (Entered: 03/08/2010)
> 03/08/2010 78 ANSWER to Complaint with JURY DEMAND. Document filed by
> Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010)
> 03/08/2010 79 ANSWER to Complaint with JURY DEMAND. Document filed by
> Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010)
>
Any merits of the case aside, it would seem to me that Moglen, et al has
bitten off a rather large chaw. The staff
http://www.softwarefreedom.org/about/team/
at SFLC seem out numbered and woefully outgunned in this matter. Presumably
a loss here, and subsequent assessment of the legal costs of the defendants,
would put their paychecks in extreme jeopardy as well. That may be more
than their nerves can stand, particularly in this down economy.
RJack
Reason? So do birds. flowers and trees. So what is your point? You are
correct (for once). I don't get it. Statements usually have to make
sense. What's your rhetorical focus?
Sincerely,
RJack :)
Hyman Rosen
> Once the GPL is invalidated
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
Copyright holders who engage in open source licensing have
the right to control the modification and distribution of
copyrighted material. As the Second Circuit explained in
Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the
"unauthorized editing of the underlying work, if proven,
would constitute an infringement of the copyright in that
work similar to any other use of a work that exceeded the
license granted by the proprietor of the copyright."
Copyright licenses are designed to support the right to
exclude; money damages alone do not support or enforce that
right. The choice to exact consideration in the form of
compliance with the open source requirements of disclosure
and explanation of changes, rather than as a dollar-
denominated fee, is entitled to no less legal recognition.
Indeed, because a calculation of damages is inherently
speculative, these types of license restrictions might well
be rendered meaningless absent the ability to enforce through
injunctive relief.
You've already lost.
Hyman Rosen
> Uhhh. What's "abnormal" copyright infringement?
When there are other defenses possible under federal law,
such as fair use or time shifting or reverse engineering.
Normal copyright infringement is simply unauthorized
copying and distribution with nothing else involved.
> Uhhh. Do you mean the preempted "covenants" that you incorrectly
> refer to as "conditons"? Preempted is preempted. What do conditions
> have to do with anything?
GPL cases involve simple copyright infringement caused
by copying and distributing without adhering to the
conditions of the license. There is no preemption
involved, because preemption merely states that all
copyright comes from federal law, and it is federal
law which disallows copying and distribution without
permission. The conditions of the GPL are conditions,
just as the conditions of the Artistic License are
conditions:
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
The Artistic License states on its face that the
document creates conditions: "The intent of this
document is to state the _conditions_ under which
a Package may be copied." (Emphasis added.) The
Artistic License also uses the traditional language
of conditions by noting that the rights to copy,
modify, and distribute are granted "provided that"
the conditions are met. Under California contract
law, "provided that" typically denotes a condition.
Alexander Terekhov
Hyman Rosen wrote:
>
> On 3/9/2010 9:11 AM, RJack wrote:
> > Uhhh. What's "abnormal" copyright infringement?
>
> When there are other defenses possible under federal law,
> such as fair use or time shifting or reverse engineering.
> Normal copyright infringement is simply unauthorized
> copying and distribution with nothing else involved.
>
> > Uhhh. Do you mean the preempted "covenants" that you incorrectly
> > refer to as "conditons"? Preempted is preempted. What do conditions
> > have to do with anything?
>
> GPL cases involve simple copyright infringement caused
> by copying and distributing without adhering to the
> conditions of the license. There is no preemption
> involved, because preemption merely states that all
> copyright comes from federal law, and it is federal
> law which disallows copying and distribution without
> permission. The conditions of the GPL are conditions,
> just as the conditions of the Artistic License are
> conditions:
> <http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
> The Artistic License states on its face that the
> document creates conditions: "The intent of this
> document is to state the _conditions_ under which
> a Package may be copied." (Emphasis added.) The
Q: If you call a tail a leg, how many legs has a dog? Five?
Judge HOCHBERG: Of course five.
Abraham Lincoln: No, calling a tail a leg doesn't make it a leg!
David Kastrup
> Any merits of the case aside, it would seem to me that Moglen, et al
> has bitten off a rather large chaw.
Fortunately, it is not the job of the court to put any merits of the
case aside.
--
David Kastrup
Hyman Rosen
> Q: If you call a tail a leg, how many legs has a dog? Five?
When a court does the calling, yes.
Alan Mackenzie
Quite simply, that it is the GPL itself which is the main reason for the
popularity of Linux amongst the people who write it. If, for some
currently inconceivable reason, Linux was relicenced under what you call
a "free as in freedom" licence, many developers would cease development.
This might leave a mere rump, scarcely larger than the groups which
maintain the BSD kernels.
RJack
You might as well cite to the law of Zimbabwe Hymen. The case is filed
in the Second Circuit. The CAFC has no precedental value anywhere in the
federal system. I hope and pray that the SFLC cites to the CAFC. It will
be a real treat to see a federal district court judge rolling on the
floor laughing before dismissing the case.
............
In a recent case in the Southern District of New York, Yurman Studio,
Inc. v. Castaneda, 07 Civ. 1241 (SAS)(S.D.N.Y. November 19, 2008),
District Judge Shira A. Scheindlin reminds us of the well settled
principle that "At the end of the day, 'statutory damages should bear
some relation to actual damages suffered' [citing RSO Records v. Peri,
596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie &
Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at
14-90(2005)] and 'cannot be divorced entirely from economic reality'"
http://recordingindustryvspeople.blogspot.com/2008_11_01_archive.html#1456008093780326775
............
Sincerely,
RJack :)
RJack
> In gnu.misc.discuss RJack <us...@example.net> wrote:
>> Alan Mackenzie wrote:
>>> In gnu.misc.discuss RJack <us...@example.net> wrote:
>
>>>> Once the GPL is invalidated, promissory estoppel will allow
>>>> some proprietary company to improve Linux and turn it into a
>>>> real operating system. Microsoft hates the thought that folks
>>>> will understand the GPL is unenforceable. That's the reason
>>>> Microsoft embraced the GPL -- it suppressed new competition.
>
>>>> Perhaps the Linux kernel will continue to be improved under a
>>>> free (free as in freedom) license such as BSD or Apache.
>
>>> You still don't get it, RJ. The GPL is the most popular free
>>> licence, and that popularity has a reason.
>
>>> Working on a BSD kernal is so much less popular than working on
>>> Linux. That has a reason, too.
>
>
>> Reason? So do birds. flowers and trees. So what is your point? You
>> are correct (for once). I don't get it. Statements usually have to
>> make sense. What's your rhetorical focus?
>
> Quite simply, that it is the GPL itself which is the main reason for
> the popularity of Linux amongst the people who write it. If, for
> some currently inconceivable reason, Linux was relicenced under what
> you call a "free as in freedom" licence, many developers would cease
> development.
Let them go home, place their candle under a basket and buy Microsoft
software. No problem there.
Hyman Rosen
> The case is filed in the Second Circuit.
> The CAFC has no precedental value anywhere in the
> federal system.
The reasoning will apply universally, since it is correct.
> At the end of the day, 'statutory damages should bear
> some relation to actual damages suffered'
But infringing defendants will be enjoined from continuing to
infringe regardless of the monetary value of damage suffered
by the plaintiffs.
David Kastrup
> Hyman Rosen wrote:
>> On 3/9/2010 8:45 AM, RJack wrote:
>>> Once the GPL is invalidated
>>
>> <http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
>>
>> You've already lost.
>
> You might as well cite to the law of Zimbabwe Hymen. The case is filed
> in the Second Circuit. The CAFC has no precedental value anywhere in
> the federal system. I hope and pray that the SFLC cites to the
> CAFC. It will be a real treat to see a federal district court judge
> rolling on the floor laughing before dismissing the case.
Tsktsktsk. Remember: stay off the keyboard when having wet dreams.
--
David Kastrup
RJack
Since the defendants aren't infringing under Second Circuit
precedental law there will be no damages at all.
Sincerely,
RJack :)
RJack
YOU just keep your pants pulled up. Sweetie.
Sincerely,
RJack :)
Hyman Rosen
> Since the defendants aren't infringing under Second Circuit
> precedental law there will be no damages at all.
The defendants are infringing by copying and distributing
copyrighted computer programs without permission.
David Kastrup
> In gnu.misc.discuss RJack <us...@example.net> wrote:
>
>> Reason? So do birds. flowers and trees. So what is your point? You
>> are correct (for once). I don't get it. Statements usually have to
>> make sense. What's your rhetorical focus?
>
> Quite simply, that it is the GPL itself which is the main reason for
> the popularity of Linux amongst the people who write it.
Well, that's half of the story. Linux has been written to support a
preexisting GNU userland. And that userland has a tradition of being
popular and freely available quite before Linux.
And BSD became freely available only some time after GNU/Linux. The GNU
userland is unpopular among BSD developers because, well, they are BSD
developers. And because their kernel of choice already comes in one
package with a userland.
So quite a lot of popularity of GNU/Linux comes from GNU, and not
necessarily just because GNU is GPLed.
> If, for some currently inconceivable reason, Linux was relicenced
> under what you call a "free as in freedom" licence, many developers
> would cease development.
The Linux kernel developers tend not to be all too religious about
licensing. Well, they do, but they call their religion pragmatism.
> This might leave a mere rump, scarcely larger than the groups which
> maintain the BSD kernels.
I doubt it.
--
David Kastrup
RJack
Dream on silly boy. Trix are for kids.
Sincerely,
RJack :)
RJack
> Alan Mackenzie <a...@muc.de> writes:
>
>> In gnu.misc.discuss RJack <us...@example.net> wrote:
>>
>>> Reason? So do birds. flowers and trees. So what is your point?
>>> You are correct (for once). I don't get it. Statements usually
>>> have to make sense. What's your rhetorical focus?
>> Quite simply, that it is the GPL itself which is the main reason
>> for the popularity of Linux amongst the people who write it.
>
> Well, that's half of the story. Linux has been written to support a
> preexisting GNU userland. And that userland has a tradition of being
> popular and freely available quite before Linux.
>
> And BSD became freely available only some time after GNU/Linux.
You are entitled to your own opinion but not your own facts.
"The University of California at Berkeley has a long history of
pioneering software development and software distribution models. Having
existed in some form since the early 1980s, the BSD licence can claim to
be the oldest of the open source licences. In fact its long life has
resulted in there being more than one version, and it is slightly
misleading to speak of the BSD licence as a result. Although the history
of its evolution is an interesting one, for the purposes of this
document we will confine ourselves to detailing the last major revision
that resulted in what is today called the modified BSD licence or the
new BSD licence."
http://www.oss-watch.ac.uk/resources/modbsd.xml
Sincerely,
RJack :)
David Kastrup
> David Kastrup wrote:
>> Alan Mackenzie <a...@muc.de> writes:
>>
>>> In gnu.misc.discuss RJack <us...@example.net> wrote:
>>>
>>>> Reason? So do birds. flowers and trees. So what is your point?
>>>> You are correct (for once). I don't get it. Statements usually
>>>> have to make sense. What's your rhetorical focus?
>>> Quite simply, that it is the GPL itself which is the main reason
>>> for the popularity of Linux amongst the people who write it.
>>
>> Well, that's half of the story. Linux has been written to support a
>> preexisting GNU userland. And that userland has a tradition of being
>> popular and freely available quite before Linux.
>>
>> And BSD became freely available only some time after GNU/Linux.
>
> You are entitled to your own opinion but not your own facts.
>
> "The University of California at Berkeley has a long history of
> pioneering software development and software distribution
> models. Having existed in some form since the early 1980s, the BSD
> licence can claim to be the oldest of the open source licences.
We are not talking about the age of the BSD license(s), but the time
when a complete BSD type operating system became available freely.
USL v. BSDi was settled just in 1993.
<URL:http://en.wikipedia.org/wiki/USL_v._BSDi>
--
David Kastrup
Alexander Terekhov
David Kastrup wrote:
[...]
> We are not talking about the age of the BSD license(s), but the time
> when a complete BSD type operating system became available freely.
http://www.youtube.com/watch?v=g7tvI6JCXD0
Hth, silly dak.
Alan Mackenzie
>> Quite simply, that it is the GPL itself which is the main reason for
>> the popularity of Linux amongst the people who write it.
> Well, that's half of the story. Linux has been written to support a
> preexisting GNU userland. And that userland has a tradition of being
> popular and freely available quite before Linux.
What is the reason for that popularity (amongst developers), if it's not
the GPL. GPL vs. BSD license was one of the few big differences between
the projects way back then.
> And BSD became freely available only some time after GNU/Linux.
Yet how does that explain why Linux is so much more popular amongst
developers than a BSD kernel? BSD became freely available at a very
early stage of the development of GNU/Linux, early enough to catch up on
its merits.
> The GNU userland is unpopular among BSD developers because, well, they
> are BSD developers. And because their kernel of choice already comes
> in one package with a userland.
The BSDs include some GNU stuff, just as GNU/Linux includes some BSD
licensed stuff.
> So quite a lot of popularity of GNU/Linux comes from GNU, and not
> necessarily just because GNU is GPLed.
Would you argue that GNU would have become just as popular (amongst its
developers), had it been licensed under something like the BSD licence?
I would doubt that very much.
>> If, for some currently inconceivable reason, Linux was relicenced
>> under what you call a "free as in freedom" licence, many developers
>> would cease development.
> The Linux kernel developers tend not to be all too religious about
> licensing. Well, they do, but they call their religion pragmatism.
That pragmatism being that they can get on with development without
bothering too much about the licence, which they know they can trust.
How happy would these folks be about being unpaid hackers for, e.g.,
Apple?
>> This might leave a mere rump, scarcely larger than the groups which
>> maintain the BSD kernels.
> I doubt it.
Well there's little prospect of that experiment taking place, thankfully.
RJack
> Well there's little prospect of that experiment taking place,
> thankfully.
The GPL is gasping for breath Alan. It'll soon be DEAD. Get over it
Alan. "Copyleft" style licenses are unenforceable under U.S. law. You
may, perhaps, continue to extol the virtues of the GPL under the
patchwork of laws of Europe but it's dead in the USA.
Sincerely,
RJack :)
David Kastrup
> In gnu.misc.discuss David Kastrup <d...@gnu.org> wrote:
>> Alan Mackenzie <a...@muc.de> writes:
>
>>> Quite simply, that it is the GPL itself which is the main reason for
>>> the popularity of Linux amongst the people who write it.
>
>> Well, that's half of the story. Linux has been written to support a
>> preexisting GNU userland. And that userland has a tradition of being
>> popular and freely available quite before Linux.
>
> What is the reason for that popularity (amongst developers), if it's not
> the GPL.
Quality. It was "traditional" for UNIX utilities to dump core when fed
random garbage. And availability. GNU utilities ran on more than just
UNIX systems.
> GPL vs. BSD license was one of the few big differences between the
> projects way back then.
Uh, not even at Linux birthtime (1991) there was a complete freely
available BSD system. But there already was a GNU userland under
DOS/Windows and some other systems. Life saver.
>> And BSD became freely available only some time after GNU/Linux.
>
> Yet how does that explain why Linux is so much more popular amongst
> developers than a BSD kernel? BSD became freely available at a very
> early stage of the development of GNU/Linux, early enough to catch up
> on its merits.
Still not with a GNU userland.
>> The GNU userland is unpopular among BSD developers because, well,
>> they are BSD developers. And because their kernel of choice already
>> comes in one package with a userland.
>
> The BSDs include some GNU stuff,
Not the normal userland. It already has one.
> just as GNU/Linux includes some BSD licensed stuff.
But there is no preexisting GNU alternative for that which it includes
BSD licensed.
>> So quite a lot of popularity of GNU/Linux comes from GNU, and not
>> necessarily just because GNU is GPLed.
>
> Would you argue that GNU would have become just as popular (amongst
> its developers), had it been licensed under something like the BSD
> licence? I would doubt that very much.
Speculative history. We won't find out.
> Well there's little prospect of that experiment taking place,
> thankfully.
Yup.
--
David Kastrup
Hyman Rosen
> "Copyleft" style licenses are unenforceable under U.S. law.
No, that's not correct. A court has enforced an open license:
David Kastrup
> Alan Mackenzie wrote:
>
>> Well there's little prospect of that experiment taking place,
>> thankfully.
>
> The GPL is gasping for breath Alan. It'll soon be DEAD. Get over it
> Alan. "Copyleft" style licenses are unenforceable under U.S. law.
Quite right, since they are no contracts and the recipient did not sign
them. And the GPL says so itself. But that does not change that
_copyright_ stays enforceable, and while that is the case, a license
like the GPL which gives conditions for additional permissions is likely
welcome to the recipients of software.
Once copyright falls, the GPL is a piece of toilet paper, while the
"licenses" like shrink-wrap and click-through which require the
recipient to agree to obnoxious restrictions on the rights that would
properly be his under copyright, will still be able to affect people who
did agree to be bound in that manner.
> You may, perhaps, continue to extol the virtues of the GPL under the
> patchwork of laws of Europe but it's dead in the USA.
Stay away from your keyboard during your wet dreams.
--
David Kastrup
RJack
Take your citation to the courts in Zimbabwe Hyman. The federal courts
of the United States ignore CAFC authority in areas outside their unique
patent appeals areas.
CAFC copyright decisions are valuable only as toilet paper in federal
courthouse restrooms. I hope and pray the SFLC cites to your CAFC
decision. ROFL.
Sincerely,
RJack :)
Hyman Rosen
> The federal courts of the United States ignore CAFC
> authority in areas outside their unique patent appeals areas.
Since the CAFC reasoned out the case correctly, we can
expect that other courts will do the same.
RJack
Ratchet up your hopes Hyman. Ratchet up your hopes. Imagine a victory
just like you imagine settlement agreements.
Sincerely,
RJack :)
Alan Mackenzie
> If you are so smart at interpreting the Federal Rules of Civil
> Procedure, why are you so dumb at grasping doctrines like preemption
> and promissory estoppel?
> Could it be that you actually know the GPL is preempted and thus GPL
> code is quasi-public domain due to promissory estoppel? Perhaps your
> feigned ignorance is just stubbornness (like Hyman Rosen)?
You know, RJack, if you actually believed what you spout on this list,
you wouldn't be shouting so loudly "the sun's going to come up tomorrow".
If you actually believed it, you'd be quietly confident of the outcome,
and await it with patience. As it is, you're clearly trying to persuade
yourself. Best of luck with that!
> Sincerely,
> RJack :)
RJack
Whining again Alan?
Sincerely,
RJack :)
RJack
PACER:
SFLC just voluntarily dismissed GCI Technologies Corp.
Has anyone seen this pattern before?
Sincerely,
RJack :)
Alexander Terekhov
RJack wrote:
>
> RJack wrote:
>
> PACER:
> SFLC just voluntarily dismissed GCI Technologies Corp.
Uh, where is the SFLC's fucking press release triumphing yet another GPL
'settlement victory'?
In the meantime
http://www.cortex-pro.com/hdc_3000.php?t=3
is still in breach.
David Kastrup
> RJack wrote:
>>
>> RJack wrote:
>>
>> PACER:
>> SFLC just voluntarily dismissed GCI Technologies Corp.
>
> Uh, where is the SFLC's fucking press release triumphing yet another GPL
> 'settlement victory'?
>
> In the meantime
>
> http://www.cortex-pro.com/hdc_3000.php?t=3
>
> is still in breach.
It would be rather unusual for a settlement not to entail reasonable
deadlines for enacting the settlement.
There is no doubt you'll act hysterical in the mean time, but that is
not really something that the involved parties can take into account
when settling.
--
David Kastrup
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > RJack wrote:
> >>
> >> RJack wrote:
> >>
> >> PACER:
> >> SFLC just voluntarily dismissed GCI Technologies Corp.
> >
> > Uh, where is the SFLC's fucking press release triumphing yet another GPL
> > 'settlement victory'?
> >
> > In the meantime
> >
> > http://www.cortex-pro.com/hdc_3000.php?t=3
> >
> > is still in breach.
>
> It would be rather unusual for a settlement not to entail reasonable
> deadlines for enacting the settlement.
LOL. And how much time that would take, silly dak?
David Kastrup
> David Kastrup wrote:
>>
>> Alexander Terekhov <tere...@web.de> writes:
>>
>> > RJack wrote:
>> >>
>> >> RJack wrote:
>> >>
>> >> PACER:
>> >> SFLC just voluntarily dismissed GCI Technologies Corp.
>> >
>> > Uh, where is the SFLC's fucking press release triumphing yet another GPL
>> > 'settlement victory'?
>> >
>> > In the meantime
>> >
>> > http://www.cortex-pro.com/hdc_3000.php?t=3
>> >
>> > is still in breach.
>>
>> It would be rather unusual for a settlement not to entail reasonable
>> deadlines for enacting the settlement.
>
> LOL. And how much time that would take, silly dak?
See? You are already getting hysterical, as predicted.
--
David Kastrup
Hyman Rosen
> In the meantime
> http://www.cortex-pro.com/hdc_3000.php?t=3
> is still in breach.
Not any more. On that page, we now have
HDC-3000 Open Source Release
<http://www.cortex-pro.com/upload/march122010/hdc-3000.zip>
Note: This is not a required download.
Built on a Linux platform to ensure high reliability and performance.
Linux and related portions of this software are provided under the GNU
Public Licence (GPL) and the Lesser GNU Public License (LGPL).
GCI Technologies has made available the source code for those portions
of the software in this source release tarfile.
So easy. See?
Alexander Terekhov
Did you check the completeness of source code, silly Hyman?
Hyman Rosen
> Did you check the completeness of source code
No. I'm insufficiently motivated to go set up a
Alexander Terekhov
Hyman Rosen wrote:
>
> On 3/15/2010 3:20 PM, Alexander Terekhov wrote:
> > Did you check the completeness of source code
>
> No. I'm insufficiently motivated to go set up a
How do you know that GCI Tech. is not in breach then you silly?
regards,
alexander.
P.S. "I'm insufficiently motivated to go set up a GNU/Linux system
so that I can do the builds."
Hyman Rosen <hyr...@mail.com> The Silliest GPL 'Advocate'
Hyman Rosen
> How do you know that GCI Tech. is not in breach then
Because they settled with the SFLC, demonstrated by the
SFLC dismissing its case.
Rex Ballard
> RJack <u...@example.net> writes:
> > The SFLC has finally bought itself a shit-load of trouble.
> Because defendents write up a defense? That's not really that
> remarkable.
Actually, the defendents are required by law to file a response. If
they don't the lose in a default judgement. The response in the case
is pretty much pro-forma. Until the facts are known, and all
disclosures are made, and the judge make preliminary rulings as to how
the law is to be interpreted, what facts will be admissable, and what
further disclosures may be ordered, neither side wants to rush to a
settlement.
> > 13. Best Buy requests a jury trial on all issues triable of right by a
> > jury.
> Juries don't interpret the law but decide on questions of fact finding.
> There is not much leeway for finding here as long as plaintiffs did not
> ask for punishment of willful violation, but for compliance.
Again this is the de-facto response. This is the respondant's way of
reserving their right to a jury trial, should there be no possibility
of a settlement and should the judge rule that the charges are with
full merit and that there has been wilful violation of the law. Even
then, often, the jury will not decide the issues of fact or of law,
but may end up only being asked to determine the amount of the
settlement.
> But Best Buy does not state being in compliance, but rather not being
> affected by BusyBox copyrights.
Actually, it does not claim noncompliance, it claims that his not
violated the copyrights.
Best Buy will probably make it's case, as to whether or not they felt
they were in compliance during the disclosure process. It's up to the
plaintiff to prove that Best Buy was not in compliance. In this case,
the SFLC most prove that Best Buy violated the terms of the BusyBox
license. Best Buy could respond by offering it's own disclosures
showing how it did attempt to comply with the license, at which point,
they may ask the judge for a preliminary ruling as to whether their
efforts met the legal requirements of compliance.
> > PRAYER FOR RELIEF
> > WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
> > favor against Plaintiffs/Counterclaimants as follows:
> > 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits;
Again, this is a standard part of a response. It's pretty much
boilerplate. If the plaintiff has no basis for the case, or at least
cannot provide evidence that the copyright was violated, in this case,
that the terms of the license were violated, then the pro-forma
countersuit is their way of preventing frivolous lawsuits. If the
lawsuit was in fact frivolous, for example, Best Buy actually did
publish the source code on their web site, as required by the
copyright license, and Best Buy provided this information prior to
SFLC filing the lawsuit, then the judge would quite likely rule in
favor of Best Buy.
> > 2. Declaring that Best Buy has not infringed the alleged copyrights in
> > BusyBox;
This response, again boilerplate, doesn't state whether they acually
copied code from BusyBox, or whether they did copy and also adhered to
the terms of the BusyBox license.
> > 3. Awarding Best Buy its costs, including reasonable attorneys’ fees,
> > incurred in connection with this matter; and
> > 4. Awarding such other relief as this Court deems just and equitable.
> > This means that the SFLC cannot file a vouluntary dismissal without
> > the permission of Best Buy Inc.
It sets the stage for a settlement. The SFLC and Best Buy will
provide disclosures to each other as ordered by the judge. If Best
Buy can show that it was in compliance with the license, then it will
be up to Best Buy to prove that SFLC had been told that they were in
compliance, had proved they were in compliance, and that SFLC
knowingly filed a frivolous lawsuit.
Again, these standard boilerplate responses are designed to meet the
requirements of the law, based on the legal requirements at this stage
of the case. These responses prevent people from filing frivolous
lawsuits which have no merit and/or are filed even after the
respondent has notified the plaintiff that it had every intention of
being in compliance, and that it was in compliance.
> There is no such thing as "filing an unvoluntary dismissal". And of
> course, once Best Buy agrees to settle, both parties will file a joint
> request for dismissal because of having agreed on settlement terms.
Both sides need to reach an agreement to settle. In many GPL
lawsuits, the only requirement for the settlement, is to show that you
have met, and will continue to meet, the disclosure requirements.
However, before there is a settlement, both sides need to know what
the other side knew. They have to prove that there the copyrighted
code was copied, and they have to prove that the person or company
making the copies had violated the terms of the copyright agreement.
Finally, if they want damages, they have to prove that the copying and
the failure to comply with the license terms was a willful and
deliberate act.
And before ANY of that goes to a jury, both sides have to show their
cards to the Judge and to each other. Usually, by that time, both
sides are more than willing to settle for terms which are not terribly
punitive to either side. The one thing that can get ugly is if the
Plaintiff drags out the proceedings demanding more and more
disclosures, increasing the cost of the legal defense, and then the
case turns out to be without merit. In those cases, the settlement is
again usually something the Plaintiff wants, but the plaintiff may not
be able to afford to pay the legal fees of the defense. IN some
cases, the Judge will allow the defendent to make a case for "Deeper
Pockets", allowing the defendent to collect legal fees from sponsors
of the plaintiff's actions. These could be business partners,
investors, venture capital firms, or other sources of money that would
have been made available, had the case proceeded in favor of the
Plaintiff. This is what IBM has been doing in the SCO case. IBM
asked the Judge to drop most of the charges, then showed that SCO was
trying to sue IBM for sharing code that was owned by IBM not SCO, then
got permission from the Judge to go after all of the companies that
had helped to fund the SCO lawsuit, including Microsoft.
> You'll be hollering about "voluntary dismissals" on the side of the SFLC
> and foaming at your mouth. But that's the way this stuff works.
This is all boilerplate language.
It really doesn't mean anything yet.
Alexander Terekhov
RJack
> And before ANY of that goes to a jury, both sides have to show their
> cards to the Judge and to each other.
Before ANY of this even goes to the discovery stage, the defendants
will file FRCP Rule 12 Motions to Dismiss challenging the legal
enforceability of the GPL contract. Only *after* determining the
enforceability of the GPL will the court be in a position to determine
what is relevant in its discovery orders. The enforceability of the
GPL is a matter of law and is determined by the trier of law (the judge
not the jury) hence the repeated language "the license speaks for
itself". One thing to watch in the defendant Answers is the language of
their defenses.
Hence defendant Versa's Answer:
======================================================================
FIFTEENTH AFFIRMATIVE DEFENSE
(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
On information and belief, Defendant alleges that Plaintiffs’ claims are
barred, limited and/or excluded on the grounds that the alleged license
at issue in this case and/or certain provisions contained therein are
illegal, unconscionable and barred by public policy as well as by
statutory and case law.
=======================================================================
This is not standard boilerplate language. You may accept as gospel that
at some point before general discovery begins, a Motion to Dismiss based
on 17 USC 301 and federal preemption as well as a claim of misuse of
copyright will be filed that challenges the GPL.
Sincerely,
RJack :)
Hyman Rosen
> You may accept as gospel that
> at some point before general discovery begins, a Motion to Dismiss based
> on 17 USC 301 and federal preemption as well as a claim of misuse of
> copyright will be filed that challenges the GPL.
That seems unlikely since federal preemption of state
copyright enforcement has nothing to do with the GPL.
David Kastrup
> Hence defendant Versa's Answer:
>
> ======================================================================
> FIFTEENTH AFFIRMATIVE DEFENSE
> (ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred, limited and/or excluded on the grounds that the alleged license
> at issue in this case and/or certain provisions contained therein are
> illegal, unconscionable and barred by public policy as well as by
> statutory and case law.
> =======================================================================
>
> This is not standard boilerplate language.
You might slap it on a boilerplate of something going to the scrapyard.
It's a silly and/or desperate defense.
--
David Kastrup
Alexander Terekhov
It's about
http://escholarship.org/uc/item/31t5x09h
(eScholarship: Copyright Preemption of Contracts)
silly Hyman.
See also footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN
CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer:
(consider that over time, under "bazaar model" with long chain of
derivation in derivative works and additions to collective works by
different authors, GPL'd IP becomes practically locked within the GPL
pool)
-----
Contracts do not involve the same basic scope or impact as do property
rights established directly by operation of common law or state statute.
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues,
that case involved the claim that a contractual restriction on the use
of an uncopyrighted database was preempted because the subject matter
of the transaction was unprotectable under copyright law.90 The court
correctly rejected this argument. It drew an explicit distinction
between a property right (potentially preempted) and a contract right.
"A copyright is a right against the world. Contracts, by contrast,
generally affect only their parties; strangers may do as they please,
so contracts do not create 'exclusive rights.'"91 This reflects the
transactional base of a contract and draws an important, relatively
explicit line for purposes of preemption claims. Enforcing a contract
between two parties leaves the subject matter of the contract (whether
copyrighted or not) entirely unencumbered by any contract issue as to
others not party to the transaction. Property rights and contract rights
are simply not equivalent.92
92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the
information.
-----
In context of
"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . .
But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996)
To repeat from Nimmer:
"It can be argued that this might change if, in effect, no third party
can avoid being bound by the contract terms in order to use the
information. "
To wit:
http://www.technollama.co.uk/a-licence-or-a-contract
"As far as I can tell, Moglen declares that he has a problem with the
global variability of contract law. He says in an interview with Kathy
Bowrey (thanks to David Berry for the link): “This is the very reason
why I have resisted contractualisation completely because contract law
is totally non uniform around the world.” With all due respect to Prof.
Moglen, it is not up to him to decide if contract law applies to a
licence, it is up to the courts. I find a part of the interview very
telling. Here Moglen says:
“So all that I do is bring an infringement action. It is the
defendant’s responsibility to prove license and the only credible
license for the defendant to plead is my license, because code is not
otherwise available except under that license.”
That is a dangerous position!"
Exactly!
=====================================================================
FIFTEENTH AFFIRMATIVE DEFENSE
(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
On information and belief, Defendant alleges that Plaintiffs’ claims
are barred, limited and/or excluded on the grounds that the alleged
license at issue in this case and/or certain provisions contained
therein are illegal, unconscionable and barred by public policy as
well as by statutory and case law.
=====================================================================
regards,
Hyman Rosen
> Hyman Rosen wrote:
>> federal preemption of state
>> copyright enforcement has nothing to do with the GPL.
> It's about
> http://escholarship.org/uc/item/31t5x09h
> (eScholarship: Copyright Preemption of Contracts)
http://escholarship.org/uc/item/31t5x09h
Courts now routinely reject the position that shrinkwrap
and other licenses should be held invalid as a matter of
contract law.
Copyright scholars next turned to preemption doctrine,
arguing that the Copyright Act should preempt contractual
licenses that alter the Act's "delicate balance" of rights
between owners and users. Here, too, courts have been
unreceptive. ... Preemption analysis focuses on conflicts
between federal law and state-imposed obligations, whereas
contracts reflect private ordering. Moreover, the Copyright
Act expressly allows contracts for certain purposes. Indeed,
the efficacy of the Act as a whole depends on the ability of
copyright owners to contract with others to make the most of
their copyrights.
As usual, the sources you cite contradict your thesis.
Preemption is entirely irrelevant to the GPL.
Alexander Terekhov
Hyman Rosen wrote:
[... http://escholarship.org/uc/item/31t5x09h ...]
> As usual, the sources you cite contradict your thesis.
> Preemption is entirely irrelevant to the GPL.
Read a bit more than a couple of introductory paragraphs, silly Hyman.
"Courts simply attempt to apply to contract claims the same two-prong
preemption test that they apply to non-contract state law claims. Courts
have little or no difficulty applying the subject matter requirement to
contract claims in the same case-by-case manner that they apply it to
other state law claims. Courts have a great deal of difficulty, however,
in applying the equivalence requirement in this way.
There are three doctrinal approaches to determining whether a contract
claim is equivalent to a copyright claim and therefore preempted. The
first approach holds that a contract right is simply not equivalent to a
copyright because it reflects private ordering and applies only to those
in privity. Put another way, the mutual promise required to make a
contract is itself an “extra element” that defeats preemption.62 This
categorical approach to contract preemption cases comes, in large part,
from Judge Easterbrook’s decision in ProCD v. Zeidenberg.63"
Hyman Rosen
> Read a bit more than a couple of introductory paragraphs
Nothing else you quote at all supports the notion that
preemption has anything to do with the GPL. That's not
surprising, since preemption has nothing to do with the
GPL.
> That is a dangerous position!
<http://www.technollama.co.uk/a-licence-or-a-contract>
this argument would seem to suggest that any user of copyright
works can be taken to court, and only then they can prove that
they actually had a licence to use the work. Imagine the same
paragraph above being said by Bill Gates and not by Eben Moglen,
and you will get why this is such a dangerous position!
This makes no sense. Assuming that "user of works" means
someone who is copying and distributing them, then he is
subject to infringement claims, to which he can use a
license as a defense. This is equally true for rights held
by Bill Gates or Eben Moglen and is entirely unsurprising.
Why would this be considered dangerous?
David Kastrup
In particular since anybody can be taken to court by anybody over
whatever claim regardless how silly. What the court decides to do in
consequence is a different matter.
--
David Kastrup
RJack
> On 3/16/2010 10:05 AM, Alexander Terekhov wrote:
>> Read a bit more than a couple of introductory paragraphs
>
> Nothing else you quote at all supports the notion that preemption has
> anything to do with the GPL. That's not surprising, since preemption
> has nothing to do with the GPL.
GPLv2:
"b) 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."
Supreme Court:
"[I]t goes without saying that a contract cannot bind a non-party".
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. 534 U.S.
279, 122 S.Ct. 754, 151 L.Ed.2d 755.
ROFL. ROFL. ROFL.
Sincerely,
RJack :)
David Kastrup
But for those who want to have it said explicitly, the GPL spells it
out:
9. Acceptance Not Required for Having Copies.
You are not required to accept this License in order to receive or
run a copy of the Program. Ancillary propagation of a covered work
occurring solely as a consequence of using peer-to-peer transmission
to receive a copy likewise does not require acceptance. However,
nothing other than this License grants you permission to propagate
or modify any covered work. These actions infringe copyright if you
do not accept this License. Therefore, by modifying or propagating
a covered work, you indicate your acceptance of this License to do
so.
The GPL is not a contract, in particular not a binding contract. It is
a license. The recipient does not become licensee under the GPL
automatically, but by accepting the terms for modification and
redistribution. Once he does that, he is bound by them.
It goes without saying that a contract or license cannot bind a
non-party. Copyright, however, will bind non-parties to such an
agreement. The recipient may, at his choice, become a party. If he
wants to make use of the privileges granted to a party (namely a
licensee), he needs to keep the conditions for becoming so. It is his
choice.
--
David Kastrup
Hyman Rosen
> GPLv2:
> "b) 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."
>
> Supreme Court:
> "[I]t goes without saying that a contract cannot bind a non-party".
The GPL sets conditions for acquiring permission to copy
and distribute a covered work. No non-parties are bound
by the GPL unless they choose to acquire the permissions
offered by the GPL. This is consistent with the quotes.
RJack
That's a really brilliant tautology.
"If I never use the GPL then the Supreme Court ruling doesn't apply"!
Clever. Really clever.
Hyman Rosen
> That's a really brilliant tautology.
> "If I never use the GPL then the Supreme Court ruling doesn't apply"!
> Clever. Really clever.
If you choose not to avail yourself of the permissions granted
by the GPL, then you are not bound by it. The Supreme Court says
that a contract cannot bind a non-party. Both of these things are
simultaneously true. You seem very confused. Certainly if you
choose to accept the permissions of the GPL then you license the
covered work at no charge to all third parties under the GPL, but
that does not bind the third parties to anything unless they too
choose to accept the permissions of the GPL.
David Kastrup
You are getting this backwards. The Supreme Court talks about
non-parties here. If you, as recipient of software, don't make use of
the GPL, you are a non-party. So the Supreme Court ruling concerning
non-parties _does_ apply, and you are not bound by the terms of the GPL.
If you, however, make use of the GPL, you become a party of the license
agreement. In that case, the Supreme Court ruling concerning
non-parties does no longer apply, and you _are_, as a party, bound by
the license terms.
The difference between a contract and a license is that with a license,
you have the choice to be considered a party, or a non-party.
--
David Kastrup
RJack
Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
asserted that the plaintiffs lack standing to bring the GPL claims.
The GPL attempts to grant benefits to all "third parties"
(hence the name "Public License"). Nowhere in the GPL is either actual
party (i.e. non-third party) to the contract named as a beneficiary.
Thus the plaintiffs have no Article III standing since they are not
contract beneficiaries.
"A plaintiff must point to some type of cognizable harm, whether such
harm is physical, economic, reputational, contractual, or even
aesthetic. . . But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be
himself among the injured.” Koziara v. City of Casselberry, 392 F.3d
1302 (11th Cir. 2004)
Sincerely,
RJack :)
Hyman Rosen
> "A plaintiff must point to some type of cognizable harm, whether such
> harm is physical, economic, reputational, contractual, or even
> aesthetic. . . But the injury in fact test requires more than an injury
> to a cognizable interest. It requires that the party seeking review be
> himself among the injured.”
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
Copyright holders who engage in open source licensing have the right
to control the modification and distribution of copyrighted material.
As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21
(2d Cir. 1976), the "unauthorized editing of the underlying work, if
proven, would constitute an infringement of the copyright in that work
similar to any other use of a work that exceeded the license granted
by the proprietor of the copyright." Copyright licenses are designed
to support the right to exclude; money damages alone do not support or
enforce that right. The choice to exact consideration in the form of
compliance with the open source requirements of disclosure and
explanation of changes, rather than as a dollar-denominated fee, is
entitled to no less legal recognition. Indeed, because a calculation
of damages is inherently speculative, these types of license
restrictions might well be rendered meaningless absent the ability to
enforce through injunctive relief.
RJack
> On 3/16/2010 12:03 PM, RJack wrote:
>> That's a really brilliant tautology. "If I never use the GPL then
>> the Supreme Court ruling doesn't apply"! Clever. Really clever.
>
> If you choose not to avail yourself of the permissions granted by the
> GPL, then you are not bound by it. The Supreme Court says that a
> contract cannot bind a non-party. Both of these things are
> simultaneously true. You seem very confused. Certainly if you choose
> to accept the permissions of the GPL then you license the covered
> work at no charge to all third parties under the GPL,
In defiance of the Supreme Court ruling.
> but that does not bind the third parties to anything unless they too
> choose to accept the permissions of the GPL.
If they are not bound then you haven't *caused* "all third parties to
be licensed" (which is impossible anyway) and thus have not satisfied
the GPL requirements.
Sincerely,
RJack :)
Only in the land of GNU can you have your cake and eat it too.
RJack
> RJack <us...@example.net> writes:
>
>> Hyman Rosen wrote:
>>> On 3/16/2010 11:42 AM, RJack wrote:
>>>> GPLv2: "b) 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."
>>>>
>>>> Supreme Court: "[I]t goes without saying that a contract cannot
>>>> bind a non-party".
>>> The GPL sets conditions for acquiring permission to copy and
>>> distribute a covered work. No non-parties are bound by the GPL
>>> unless they choose to acquire the permissions offered by the GPL.
>>> This is consistent with the quotes.
>> That's a really brilliant tautology. "If I never use the GPL then
>> the Supreme Court ruling doesn't apply"! Clever. Really clever.
>
> You are getting this backwards. The Supreme Court talks about
> non-parties here. If you, as recipient of software, don't make use
> of the GPL, you are a non-party. So the Supreme Court ruling
> concerning non-parties _does_ apply, and you are not bound by the
> terms of the GPL. If you, however, make use of the GPL, you become a
> party of the license agreement.
Who am I supposed to believe? You or my lyin' eyes? ROFL.
In that case, the Supreme Court ruling concerning
> non-parties does no longer apply, and you _are_, as a party, bound by
> the license terms.
>
> The difference between a contract and a license is that with a
> license, you have the choice to be considered a party, or a
> non-party.
>
Sincerely,
RJack :)
RJack
party (i.e. non-third party) to the contract named as a benificiary.
Thus the plaintiffs have no Article III standing since they are not
conract beneficiaries.
Hyman Rosen
>> If you choose not to avail yourself of the permissions granted by the
>> GPL, then you are not bound by it. The Supreme Court says that a
>> contract cannot bind a non-party. Both of these things are
>> simultaneously true. You seem very confused. Certainly if you choose
>> to accept the permissions of the GPL then you license the covered
>> work at no charge to all third parties under the GPL,
>
> In defiance of the Supreme Court ruling.
No, in accordance with the Supreme Court ruling. If you choose to
accept the permissions offered by the GPL, then you become a party
to it, and must obey its conditions.
>> but that does not bind the third parties to anything unless they too
>> choose to accept the permissions of the GPL.
>
> If they are not bound then you haven't *caused* "all third parties to
> be licensed" (which is impossible anyway) and thus have not satisfied
> the GPL requirements.
You have, by copying and distributing the covered work along with
the GPL, which specifies that you are granting this license to all
third parties.