Groklaw attacks Alexander

[Rjack]

In 2004, Pamela Jones, the Sarah Palin of the software world, smartly
published a bit of brilliant legal analysis and announced to the World
that copyright licenses were not contracts:

“The GPL is a License, Not a Contract, Which is Why the Sky Isn't
Falling”, Sunday, December 14 2003 @ 09:06 PM EST Pamela Jones at
Groklaw.

http://www.groklaw.net/article.php?story=20031214210634851

Her reasoning, citing Eben Moglen of the Free Software Foundation, was
that the GPL is a license and not a contract, and therefore not
subject to interpretation under the state common law of fifty
different states thus rendering it infallible in federal
court:

"So when you read people say that the GPL is perhaps not enforceable
because you don't sign it or click on a form, or because of a lack of
privity, or because there is a lack of consideration, or some such,
you'll understand that the person misunderstood and thought in terms
of contract law. It's a common error. They don't shoot you at dawn for
not fully understanding the GPL. But at the same time, it's good to
know that the problems people think they see in the GPL generally are
the result of not understanding it, not from any weakness in the GPL
itself." (link supra)

Today the phrase "The GPL is a License, Not a Contract" returns over
14,000 hits in a search using Google and is gospel truth to Free
Software advocates worldwide. There is just one minor problem with her
legal research -- it's utter legal gibberish. For the past 82 years,
since the 1927 Supreme Court decision in De Forest Radio Tel. & Tel.
Co. v. United States, 273 U.S. 236, no federal court at either the
circuit or district level has ever held that a copyright license is
anything any other than a contract interpreted under the state common
law of contracts.

In a recent Groklaw post criticizing Alexander Terekhov she asserted:

"He also claimed that Eben Moglen would never dare to go to court
against Cisco/Linksys/Broadcom or whoever, because he'd lose since his
GPL 'game' was all about bluff. That was in 2004. As you know,
the Software Freedom Law Center has since gone to court successfully
regarding the GPL multiple times, so be aware that his "legal" views
are not accurate, in my view."

http://www.groklaw.net/article.php?story=2009081716312060

The Software Freedom Law Center has, as a propaganda ploy, recently
gone to court seven times and promptly voluntarily dismissed each suit
before a federal judge could ever read a single sentence from one of
their complaints. Now that's snatching "victory" from the jaws of defeat.

FACT: No claim for any relief requested by an S.F.L.C. plaintiff
has ever been granted by a federal court.

Why wouldn't the S.F.L.C. immediately dismiss their frivolous suits?
Can you imagine the look on a district judge's face when he realizes
the plaintiffs are claiming "The GPL is a License, Not a Contract"? If
P.J. had listened to Maureen O'Gara and Daniel Wallace in 2004 instead
of making up her own delusional law, she wouldn't appear to be such an
embarrassing nut-job today. (P.J.'s probably a Birther, so look out
Barack)

Sincerely,
Rjack

-- "Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C. 101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006) --

[amicus_curious]

Post by Rjack
FACT: No claim for any relief requested by an S.F.L.C. plaintiff
has ever been granted by a federal court.

The spin here is that it has never been necessary to go to judgment due to
the defendant always yielding to the impeccable logic of the SFLC. Multiple
instances of this have been cited ad nauseam here and in Groklaw and many
other places.

What is always ignored, however, is that the real issue of interest is
never in play. The GPL essentially allows anyone to do anything with
everything GPL with the sole provision that the doer pass onto any
downstream user the source materials involved, including the license text
itself. Anyone making direct use of the GPL program is even indemnified by
the GPL to automatically receive permission even if the materials are not
supplied by the upstream distributor. No money is required to change hands
unless the distributor wants to charge for "support" or for the cost of
generating the copies of the material involved.

That is a wonderfully benevolent position until someone makes a contribution
that is actually worth some money to downstream users. ( I am not familiar
with any case where that has actually occurred and perhaps some FOSS
advocate could point to one.) Regardless, it has never been an issue in any
of the SFLC actions which have centered around an author using the BusyBox
utilities for a Linux compatible program without publishing the source
materials for the BusyBox version used. The "settlement" has universally
been for the defendant to simply publish or otherwise provide access to the
material on a web link somewhere. In the Verizon case, that was performed
by the Verizon supplier rather than Verizon itself, which was promptly
deemed an adequate move and the plaintiff moved for dismissal.

Such a low cost or no cost solution to the case has to always be preferable
to even a slight bit of litigation expense and so the SFLC is destined to
always "win" such victories. I have never heard of a case where the
defendant was trying to protect the disclosure of some improvement to the
original GPL program that had commercial value. Until that happens, the
whole issue remains a silly academic tempest in a teapot.

[David Kastrup]

Post by Rjack
The Software Freedom Law Center has, as a propaganda ploy, recently
gone to court seven times and promptly voluntarily dismissed each suit
before a federal judge could ever read a single sentence from one of
their complaints. Now that's snatching "victory" from the jaws of defeat.
FACT: No claim for any relief requested by an S.F.L.C. plaintiff
has ever been granted by a federal court.

Well, since the GPL is a licence, not a contract, the law cases start
off by the parties stating their position. The defendant has to state
whether he wants to claim making use of the GPL as a license or not. If
he wants to make use of the GPL, he has to state how he is in compliance
with it. It he doesn't, he has to state how he is in compliance with
copyright law. In particular the second variant is quite uninteresting
for the SFLC since the SFLC is not interested in another case of
"copyright is valid" that does not refer to the GPL.

So the defendant prefers a settlement where he comes into compliance.
SFLC agrees. Dismissal without prejudice. Then there have been cases
where the defendant has been dragging his feet with regard to compliance
information so much that the SFLC had to go to court before getting the
required information, and the original premise had not been applicable.
Settlement where the defendant bears the costs, and dismissal with
prejudice.

Post by Rjack
Why wouldn't the S.F.L.C. immediately dismiss their frivolous suits?

Because of a settlement satisfying the goals of the suit.

Post by Rjack
Can you imagine the look on a district judge's face when he realizes
the plaintiffs are claiming "The GPL is a License, Not a Contract"? If
P.J. had listened to Maureen O'Gara and Daniel Wallace in 2004 instead
of making up her own delusional law,

Daniel Wallace, the person who was prodded by the court about four times
in succession to state an actual case, and finally got his nonsense
dismissed for lack of doing so?

And Maureen O'Gara, who got shunted from her magazine for
non-professional conduct including harrassment and libel?

I think I'd rather listen to Wile E. Coyote for legal advice.

Post by Rjack
she wouldn't appear to be such an embarrassing nut-job today. (P.J.'s
probably a Birther, so look out Barack)

Considering embarrassing nut jobs, you seem to be close to the top of
the list.

[Rjack]

Post by David Kastrup
Daniel Wallace, the person who was prodded by the court about four
times in succession to state an actual case, and finally got his
nonsense dismissed for lack of doing so?

Ah. . . the Wallace v. F.S.F. case eh? If I remember correctly that's
where arch pro bono "legal expert" for the F.S.F., Professor Eben
Moglen, lacked the legal acumen (and cojones) to defend a simple
lawsuit filed by a pro se plaintiff (Wallace). This, after Moglen had
bragged:

"24. In my role as General Counsel of the Foundation, I have been
primarily responsible for all worldwide enforcement activity in
defense of the GPL since 1994..."
http://www.gnu.org/press/mysql-affidavit.html


Instead of defending the FSF, Moglen hired the expensive
multi-national law firm of Ice Miller L.L.P. in Indianapolis, IN.
Doesn't say too much for Moglen's personal "pro bono" expertise huh?
Either Moglen was unqualified as a lawyer or Wallace was a very tough
customer (there's no evidence on record that Moglen is admitted to
practice law in the federal courts or has ever passed a state bar exam).

In the Wallace v. F.S.F. case the F.S.F. filed a Motion to Dismiss,
explicitly claiming that the GPL was a contract:

"Plaintiff's [Wallace] mischaracterization of the GPL in his Response
has no bearing on the resolution of the pending Motion to Dismiss
because the Court can examine the GPL itself. "[T]o the extent that
the terms of an attached contract conflict with the allegations of the
complaint, the contract controls." Centers v. Centennial Mortg., Inc.,
398 F.3d 930, 933 (7th Cir. 2005)."
http://osdir.com/ml/gnu-misc-discuss-gnu/2009-05/msg00193.html


The F.S.F. has spent years using sites like Groklaw astroturfing the
claim “The GPL is a License, Not a Contract" and then contradicts
itself by claiming in federal court that the GPL is a contract. After
the lawsuit ends the F.S.F. again claims the GPL is not a contract.
That's my definition of a nut-job.

Sincerely,
Rjack

[David Kastrup]

Post by Rjack

Post by David Kastrup
Daniel Wallace, the person who was prodded by the court about four
times in succession to state an actual case, and finally got his
nonsense dismissed for lack of doing so?

Ah. . . the Wallace v. F.S.F. case eh? If I remember correctly that's
where arch pro bono "legal expert" for the F.S.F., Professor Eben
Moglen, lacked the legal acumen (and cojones) to defend a simple
lawsuit filed by a pro se plaintiff (Wallace). This, after Moglen had
"24. In my role as General Counsel of the Foundation, I have been
primarily responsible for all worldwide enforcement activity in
defense of the GPL since 1994..."
http://www.gnu.org/press/mysql-affidavit.html

"responsible" is not the same as "doing all the work single-handedly".

Post by Rjack
Instead of defending the FSF, Moglen hired the expensive
multi-national law firm of Ice Miller L.L.P. in Indianapolis, IN.
Doesn't say too much for Moglen's personal "pro bono" expertise huh?

It says that he has kept up with his responsibilities by delegating.

Post by Rjack
Either Moglen was unqualified as a lawyer or Wallace was a very tough
customer (there's no evidence on record that Moglen is admitted to
practice law in the federal courts or has ever passed a state bar exam).

Or Wallace was not worth his personal time since the costs would land
with Wallace anyway. So there was no point in exerting himself.

Post by Rjack
In the Wallace v. F.S.F. case the F.S.F. filed a Motion to Dismiss,
"Plaintiff's [Wallace] mischaracterization of the GPL in his Response
has no bearing on the resolution of the pending Motion to Dismiss
because the Court can examine the GPL itself. "[T]o the extent that
the terms of an attached contract conflict with the allegations of the
complaint, the contract controls." Centers v. Centennial Mortg., Inc.,
398 F.3d 930, 933 (7th Cir. 2005)."
http://osdir.com/ml/gnu-misc-discuss-gnu/2009-05/msg00193.html

No, here a case was _cited_ in comparison where indeed a contract was in
issue. That does not mean that the GPL is a contract as well, but it
means that once where a license is _used_, _then_ the respective license
condition adherence is held to a similar standard as contracts are, so
contract case law is applicable, except that there is no invalidation
through single invalid clauses and that there can't be contractual, but
merely actual damages claimed.

Namely, in the context that this contract case law was cited, the
difference between contract and license was not relevant.

Post by Rjack
The F.S.F. has spent years using sites like Groklaw astroturfing the
claim “The GPL is a License, Not a Contract" and then contradicts
itself by claiming in federal court that the GPL is a contract.

They did no such thing. They cited a contract law case which was
applicable in that area where licenses and contracts behave similarly.

Post by Rjack
After the lawsuit ends the F.S.F. again claims the GPL is not a
contract. That's my definition of a nut-job.

Just because you are a nut who can't figure out the fine points does not
mean everybody else is.

[Alexander Terekhov]

David Kastrup wrote:
[...]

Post by David Kastrup
No, here a case was _cited_ in comparison where indeed a contract was in
issue. That does not mean that the GPL is a contract as well, but it
means that once where a license is _used_, _then_ the respective license
condition adherence is held to a similar standard as contracts are, so
contract case law is applicable, except that there is no invalidation
through single invalid clauses and that there can't be contractual, but
merely actual damages claimed.

LOL.

You are truly retarded, dak.

http://www.groklaw.net/articlebasic.php?story=20061123091221786

"SCO's GPL violations entitle IBM to at least nominal damages on the
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled"
that nominal damages are recoverable upon breach of contract); Kronos,
Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages
are always available in breach of contract action".). "

regards,
alexander.

--
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.)

[David Kastrup]

Post by Alexander Terekhov
[...]

Post by David Kastrup
No, here a case was _cited_ in comparison where indeed a contract was in
issue. That does not mean that the GPL is a contract as well, but it
means that once where a license is _used_, _then_ the respective license
condition adherence is held to a similar standard as contracts are, so
contract case law is applicable, except that there is no invalidation
through single invalid clauses and that there can't be contractual, but
merely actual damages claimed.

LOL.
You are truly retarded, dak.

Reassuring coming from someone with such a warped perception as yours.

Post by Alexander Terekhov
http://www.groklaw.net/articlebasic.php?story=20061123091221786
"SCO's GPL violations entitle IBM to at least nominal damages on the
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled"
that nominal damages are recoverable upon breach of contract); Kronos,
Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages
are always available in breach of contract action".). "

So you have no clue about the term "nominal damages". Look it up then.
Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages.

So again, you are quoting something that flatly says the opposite of
what you intend to show, and hopping with glee in the process.

Talk about "truly retarded".

[Alexander Terekhov]

David Kastrup wrote:
[...]

Post by David Kastrup
So you have no clue about the term "nominal damages". Look it up then.
Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages.

Go to doctor, silly dak.

http://chestofbooks.com/business/law/Law-Of-Contracts-4-3/Sec-1571-Classes-Of-Damages-Nominal-Damages.html

"If there is a breach of contract, and no actual damage is shown to have
followed therefrom, nominal damages only can be given."

"So only nominal damages can be given for breach of a contract not to
compete if no actual damages are shown to exist."

"If the breach is such that actual damage might result the court is not
justified in assuming as a matter of law that the damages are merely
nominal."

http://books.google.ca/books?id=8JtwkQrAC_kC&pg=PA547&lpg=PA547&dq=contractual+damages+nominal&source=bl&ots=Hk5GKeERB8&sig=NZ_RKOi3jztHYvriJwZnrCRlmLI&hl=en&ei=vnSSSonVKIme_AaA_sywAg&sa=X&oi=book_result&ct=result&resnum=3

"if the 'injured' party has suffered no loss, the damages awarded will
be nominal --- merely marking the contractual right."

Man oh man, you *are* truly retarded, dak.

regards,
alexander.

--
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.)

[David Kastrup]

Post by Alexander Terekhov
[...]

Post by David Kastrup
So you have no clue about the term "nominal damages". Look it up then.
Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages.

Go to doctor, silly dak.
http://chestofbooks.com/business/law/Law-Of-Contracts-4-3/Sec-1571-Classes-Of-Damages-Nominal-Damages.html
"If there is a breach of contract, and no actual damage is shown to have
followed therefrom, nominal damages only can be given."
"So only nominal damages can be given for breach of a contract not to
compete if no actual damages are shown to exist."
"If the breach is such that actual damage might result the court is not
justified in assuming as a matter of law that the damages are merely
nominal."
http://books.google.ca/books?id=8JtwkQrAC_kC&pg=PA547&lpg=PA547&dq=contractual+damages+nominal&source=bl&ots=Hk5GKeERB8&sig=NZ_RKOi3jztHYvriJwZnrCRlmLI&hl=en&ei=vnSSSonVKIme_AaA_sywAg&sa=X&oi=book_result&ct=result&resnum=3
"if the 'injured' party has suffered no loss, the damages awarded will
be nominal --- merely marking the contractual right."
Man oh man, you *are* truly retarded, dak.

Thanks for the quotations. As I said, contractual damages (which are
not applicable for a mere license) are spelled out and thus are not
subject to be replaced by nominal charges. In absence of contractually
specified damages (either because of a license, or because of not being
spelled out inside a contract), actual damages are awarded. Where those
can't be shown, nominal damages may be awarded.

As I said, as you quote, and as you don't understand. Truly amusing
that you continue swinging your "truly retarded" phrase.

[Alexander Terekhov]

David Kastrup wrote:
[...]

Post by David Kastrup
Thanks for the quotations. As I said, contractual damages (which are
not applicable for a mere license) are spelled out and thus are not
subject to be replaced by nominal charges. In absence of contractually
specified damages (either because of a license, or because of not being
spelled out inside a contract), actual damages are awarded. Where those
can't be shown, nominal damages may be awarded.

First off, you wrote before that

"Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages."

which is utter crapola.

Both "actual damages" and "nominal damages" are "contractual damages"
silly.

There is also "liquidated damages" which is pre-estimated (capped)
"actual damages".

I gather that what you call "contractually specified damages" is
actually known as Vertragsstrafe (contractual penalty).

And that has nothing to do with contractual damages. See e.g.

http://law.jrank.org/pages/8310/Liquidated-Damages.html

"The American Law Reports annotation on liquidated damages states,
"Damages for breach by either party may be liquidated in the agreement
but only at an amount that is reasonable in light of the anticipated or
actual harm caused by the breach. ... A term fixing unreasonably large
liquidated damages is unenforceable on grounds of public policy as a
penalty" (12 A.L.R. 4th 891, 899).

A penalty is a sum that is disproportionate to the actual harm. It
serves as a punishment or as a deterrent against the breach of a
contract. Penalties are granted when it is found that the stipulations
of a contract have not been met. For example, a builder who does not
meet his or her schedule may have to pay a penalty. Liquidated damages,
on the other hand, are an amount estimated to equal the extent of injury
that may occur if the contract is breached. These damages are determined
when a contract is drawn up, and serve as protection for both parties
that have entered the contract, whether they are a buyer and a seller,
an employer and an employee or other similar parties."

and

http://www.legalserviceindia.com/articles/li2.htm

"In a contract, the parties may name a sum to be payable in the event of
breach. If such sum is a genuine pre estimate of loss it is termed
liquidated damages, and if it bears no reflection on the loss suffered,
it is termed a penalty. Courts are reluctant to enforce penalty clauses
and in such cases the sum stipulated is normally reduced. It has been
perceptively observed by Fansworth that in comparison to the bargaining
power which parties enjoy in negotiating their substantive contractual
rights and duties, their power to bargain over their remedial rights is
surprisingly limited. They are not at liberty to name an extravagant sum
having no relation to the breach, for fear of it being construed as a
penalty. It is interesting to contrast this with the law relating to
consideration. A man may sell his car for a handful of marbles, and the
law cares not, as long as he is satisfied. Yet the law would give no
peace to a man who claims ten thousand rupees for failure to deliver a
handful of marbles, branding such a clause penal."

regards,
alexander.

--
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.)

[David Kastrup]

Post by Alexander Terekhov
[...]

Post by David Kastrup
Thanks for the quotations. As I said, contractual damages (which are
not applicable for a mere license) are spelled out and thus are not
subject to be replaced by nominal charges. In absence of contractually
specified damages (either because of a license, or because of not being
spelled out inside a contract), actual damages are awarded. Where those
can't be shown, nominal damages may be awarded.

First off, you wrote before that
"Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages."
which is utter crapola.

Perhaps "contractual penalties" gives a better view?

Post by Alexander Terekhov
Both "actual damages" and "nominal damages" are "contractual damages"
silly.

If they are not specified in the contract, they are not contractual.
Nominal damages will certainly never be spelled out in a contract
("Party A promises to maintain all terms of this contract and agrees to
pay a total sum of $1 should it be found to be in violation of it" --
nonsensical).

[Alexander Terekhov]

David Kastrup wrote:
[...]

Post by David Kastrup

Post by Alexander Terekhov
"Nominal charges are _exactly_ used when a party would have the right to
claim _actual_ damages rather than _contractual_ damages."
which is utter crapola.

Perhaps "contractual penalties" gives a better view?

But penalties are not damages you idiot.

Damages are the loss suffered by the non-breaching party in the event of
a breach.

The contract laws recognize a concept called "efficient breach" which
encourages breach of a contract if it's economically efficient to do so.
Compliance with a contract is almost always voluntary -- if you choose
not to comply, then you don't have to. You merely have to compensate the
non-breaching party for his expectancy interest (pay contractual
damages).

Penalties are oppressive in nature and serve the purpose of deterring
the party labouring under the threat of their imposition from breaching
the contract.

"Courts are reluctant to enforce penalty clauses and in such cases the
sum stipulated is normally reduced. It has been perceptively observed by
Fansworth that in comparison to the bargaining power which parties enjoy
in negotiating their substantive contractual rights and duties, their
power to bargain over their remedial rights is surprisingly limited.
They are not at liberty to name an extravagant sum having no relation to
the breach, for fear of it being construed as a penalty. It is
interesting to contrast this with the law relating to consideration. A
man may sell his car for a handful of marbles, and the law cares not, as
long as he is satisfied. Yet the law would give no peace to a man who
claims ten thousand rupees for failure to deliver a handful of marbles,
branding such a clause penal."

Post by David Kastrup

Post by Alexander Terekhov
Both "actual damages" and "nominal damages" are "contractual damages"
silly.

If they are not specified in the contract, they are not contractual.

Go to doctor, dak.

regards,
alexander.

--
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.)

[Rjack]

Post by David Kastrup
Well, since the GPL is a licence, not a contract, the law cases
start off by the parties stating their position. The defendant
has to state whether he wants to claim making use of the GPL as a
license or not. If he wants to make use of the GPL, he has to
state how he is in compliance with it. It he doesn't, he has to
state how he is in compliance with copyright law. In particular
the second variant is quite uninteresting for the SFLC since the
SFLC is not interested in another case of "copyright is valid"
that does not refer to the GPL.

When the claimed license is attached by the plaintiff such as the
frivolous S.F.L.C. suits, there is no dispute as to its existence
hence the burden of proof remains with the plaintiff S.F.L.C. The
defendant doesn't have to state anything:

"In this case, however, there is no dispute that Disney received
from Bourne various licenses to copyrighted compositions. The only
dispute is whether Disney's synchronization of the Compositions with
its home videocassettes and its use of the Compositions in its
television commercials fall within the scope of the existing
licenses. See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20
(2d Cir.1976) (licensee infringes owner's copyright if its use
exceeds the scope of the license). Thus, the only dispute here is
the scope of the licenses, not their existence.

We conclude that, in cases where only the scope of the license is at
issue, the copyright owner bears the burden of proving that the
defendant's copying was unauthorized. See S.O.S., Inc. v. Payday,
Inc., 886 F.2d 1081, 1085 (9th Cir.1989) ("To prevail on its claim
of copyright infringement, [the copyright owner] must prove ...
'copying' of protectible expression by [the accused infringer]
beyond the scope of [the] license."); Microsoft Corp. v. Harmony
Computers & Electronics, Inc., 846 F.Supp. 208, 210 (E.D.N.Y.1994);
see also NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 235 n.
5 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2249, 132
L.Ed.2d 257 (1995). Copyright disputes involving only the scope of
the alleged infringer's license present the court with a question
that essentially is one of contract: whether the parties' license
agreement encompasses the defendant's activities. Just as in an
ordinary contract action, the party claiming a breach carries the
burden of persuasion. See Gordon v. Leonetti, 324 F.2d 491, 492 (2d
Cir.1963)."; BOURNE v. WALT DISNEY CO., 36 U.S.P.Q.2d 1449; 68 F.3d
621 (2nd Cir. 1995).

DAK, you are no better at making up your own delusional procedural
law than is P.J. over at Groklaw. You should hang out over at
Groklaw and kiss Pammy's lyin' butt instead of posting here, only to
beconstantly and embarrassingly corrected by Alexander Terekhov.

Sincerely,
Rjack

[7]

Post by Rjack
In 2004, Pamela Jones, the Sarah Palin of the software world

So that gives you the right to attack Pamela as a Sarah Palin?

YOU UTTER CRETIN!!!!

[Rjack]

Post by 7

Post by Rjack
In 2004, Pamela Jones, the Sarah Palin of the software world

So that gives you the right to attack Pamela as a Sarah Palin?
YOU UTTER CRETIN!!!!

At least you didn't call me Free Software advocate. Thanks.

You think Sarah is smarter than Pamela? They both display similar
characteristics. They both seem to lie a lot. They both like to
astroturf. They are both a bit paranoid. They both enjoy a large
following of wing-nuts. Maybe they're sisters.

Sincerely,
Rjack

[Alexander Terekhov]

ROFL!

http://www.groklaw.net/comment.php?mode=display&sid=2009081716312060&title=Team+of+Apple+lawyers&type=article&order=DESC&hideanonymous=0&pid=781208#c781224

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Team of Apple lawyers

Authored by: PJ on Sunday, August 23 2009 @ 09:36 PM EDT

I think you are misstating things. Title to what passes at time of sale?
The CD? But what good is that, when it's the software that you really
want, and you can't get title to that, because it's intellectual
property, intangible, and copyrighted. So what is the benefit of gaining
"title" when you can't get the important part? And does the UCC fit if
you can't get the important part? Why don't you read this article on why
Article 2 can't apply to software? It might put some new thoughts in
your head you can consider. While you are reading it and then thinking
about it, think about what happens to software if it is viewed as a good
that can be sold in a contractual sense, like widgets. What happens to
Copyright law? Where does it fit? And what happens to programmers if
they are now bound by warranties of merchantability and all the rest?
What happens when someone violates the EULA or the GPL now? Can you sue
still under copyright law? Or must you go to state courts and sue for
breach of contract? You see how your simplification of a "remedy" can
cause some truly horrific consequences? Had you thought them through? If
so, what do you answer? You know, the antiGPL crowd for years has been
arguing that the GPL is a contract, because, I believe, they have this
figured out, and if you have to sue for breach in state law, you can't
realistically prevail if you are just some FOSS programmer up against a
large company that can outspend you and outlast you. Whereas the
copyright law remedy keeps even the bolder players at least polite.
That's the beauty of the GPL, that it evens the field, and you would
like to take that away from its arsenal. Why?
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regards,
alexander.

--
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.)