the GPL is a license not a contract ..

[Doug Mentohl]

The great debate on the software blogs about TomTom violating the GPL is sheer nonsense of the same caliber as Eben Moglen's nonsense about a copyright license not being a contract.

'The GPL only obliges you if you distribute software made from GPL'd
code, and only needs to be accepted when redistribution occurs'

http://emoglen.law.columbia.edu/my_pubs/lu-12.html

'If this argument were valid, no copyright license could permit a
licensee to make multiple copies of a licensed program. That would make
not just the GPL "illegal": Heise's supposed theory would also
invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free
software licenses'

http://news.cnet.com/Putting-the-GPL-on-trial/2010-1071_3-5065289.html

The GPL, however, is a true copyright license: a unilateral permission,
in which no obligations are reciprocally required by the licensor.
Copyright holders of computer programs are given, by the Copyright Act,
exclusive right to copy, modify and redistribute their programs. The
GPL, reduced to its essence, says:

'You may copy, modify and redistribute this software, whether modified
or unmodified, freely. But if you redistribute it, in modified or
unmodified form, your permission extends only to distribution under the
terms of this license. If you violate the terms of this license, all
permission is withdrawn.'

http://lwn.net/Articles/61292/

[amicus_curious]

The great debate on the software blogs about TomTom violating the GPL is
sheer nonsense of the same caliber as Eben Moglen's nonsense about a
copyright license not being a contract.

'The GPL only obliges you if you distribute software made from GPL'd code,
and only needs to be accepted when redistribution occurs'
http://emoglen.law.columbia.edu/my_pubs/lu-12.html
'If this argument were valid, no copyright license could permit a licensee
to make multiple copies of a licensed program. That would make not just
the GPL "illegal": Heise's supposed theory would also invalidate the BSD,
Apache, AFL, OSL, MIT/X11, and all other free software licenses'
http://news.cnet.com/Putting-the-GPL-on-trial/2010-1071_3-5065289.html
The GPL, however, is a true copyright license: a unilateral permission, in
which no obligations are reciprocally required by the licensor. Copyright
holders of computer programs are given, by the Copyright Act, exclusive
right to copy, modify and redistribute their programs. The GPL, reduced to
'You may copy, modify and redistribute this software, whether modified or
unmodified, freely. But if you redistribute it, in modified or unmodified
form, your permission extends only to distribution under the terms of this
license. If you violate the terms of this license, all permission is
withdrawn.'
http://lwn.net/Articles/61292/

That is easy for him to SAY, but he also freely admits "I'm the only lawyer
on earth who can say this, I suppose..." which makes him a very small part
of all the lawyers and judges who might have their own say.

[Hyman Rosen]

he also freely admits "I'm the only lawyer on earth who can
say this, I suppose..." which makes him a very small part of
all the lawyers and judges who might have their own say.

You are not very good at understanding context, I suppose,
or else you're deliberately trying to mislead readers here.
The full sentence is
"I'm the only lawyer on earth who can say this, I suppose,
but it makes me wonder what everyone's wondering about:
Enforcing the GPL is something that I do all the time."

[Doug Mentohl]

amicus_curious wrote:

Microsoft's anti-GPL offensive this summer has sparked renewed
speculation about whether the GPL is ``enforceable.'' This particular
example of ``FUD'' (fear, uncertainty and doubt) is always a little
amusing to me.

"I'm the only lawyer on earth who can say this, I suppose..." which makes him a very small part of all the lawyers and judges who might have their own say.

http://emoglen.law.columbia.edu/my_pubs/lu-12.html

[amicus_curious]

Microsoft's anti-GPL offensive this summer has sparked renewed speculation
about whether the GPL is ``enforceable.'' This particular example of
``FUD'' (fear, uncertainty and doubt) is always a little amusing to me.

I don't think that this qualifies as FUD per se. It goes more to the
undermining of the FSF and the FOSS idea rather than to the promotion of
Microsoft or even the demise of OSS as opposed to FOSS. No GPL, no Stallman
cult, is all it means.

[Rjack]

Post by Doug Mentohl

The great debate on the software blogs about TomTom violating
the GPL is sheer nonsense of the same caliber as Eben Moglen's
nonsense about a copyright license not being a contract.

'The GPL only obliges you if you distribute software made from
GPL'd code, and only needs to be accepted when redistribution
occurs'
http://emoglen.law.columbia.edu/my_pubs/lu-12.html
'If this argument were valid, no copyright license could permit a
licensee to make multiple copies of a licensed program. That
would make not just the GPL "illegal": Heise's supposed theory
would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all
other free software licenses'
http://news.cnet.com/Putting-the-GPL-on-trial/2010-1071_3-5065289.html
The GPL, however, is a true copyright license: a unilateral
permission, in which no obligations are reciprocally required by
the licensor. Copyright holders of computer programs are given,
by the Copyright Act, exclusive right to copy, modify and
redistribute their programs. The GPL, reduced to its essence,
'You may copy, modify and redistribute this software, whether
modified or unmodified, freely. But if you redistribute it, in
modified or unmodified form, your permission extends only to
distribution under the terms of this license. If you violate the
terms of this license, all permission is withdrawn.'
http://lwn.net/Articles/61292/

What you have said is what Eben Moglen has said. How about some
commentary from other lawyers?

1) Let's try the Supreme Court of the United States:

"MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
. . .
Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; De Forest Radio
Tel. & Tel. Co. v. United States, 273 U.S. 236, (1927).

2) Let's try The United States Court of Appeals for the Federal Circuit:

"RADER, Circuit Judge.
. . .
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, (CAFC 1995).

3) Let's try The United States Court of Appeals for the Seventh Circuit:

"ROVNER, Circuit Judge.
. . .
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, CA7 2006).

For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

Sincerely,
Rjack :)

[Hyman Rosen]

Post by Rjack
For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

And we see from this case
<http://cyberlaw.stanford.edu/packet/200703/court-upholds-copyright-infringement-and-unauthorized-access-claims-wh>
that even when there indisputably is a contract, violation of the
contract justifies claims of copyright infringement.

[Rjack]

Post by Hyman Rosen

Post by Rjack
For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

And we see from this case
<http://cyberlaw.stanford.edu/packet/200703/court-upholds-copyright-infringement-and-unauthorized-access-claims-wh>
that even when there indisputably is a contract, violation of the
contract justifies claims of copyright infringement.

So what is your point?

A copyright license may contain covenants, conditions, conditions
precedent, and scope-of-use provisions. A court examines a copyright
license under state contract law as well applicable federal
copyright law.

The fact that a copyright license is a contract means that privity
requirements as well as 17 USC sec 301(a) apply. Because copyright
license are often not clearly written, all kinds of controversies
result. One of the thorniest issues is confusion between language
used concerning "conditions precedent" and "scope-of-use"
restrictions. Both concepts are commonly referred to as simply
"conditions" which causes much, much confusion.

Many lawyers, including judges, confuse these terms and use themj
interchangeably. A scope-of-use restriction is descriptive language
restricting how an exclusive right can be used. A scope-of-use
restriction is not a term of contract contruction, it is an "in rem"
restriction that attaches to personal property. Exceed the scope
(field) of use restrictions and it is copyright infringement
regardless of contract provisions.

See:
"FIELD OF USE RESTRICTION [general intellectual property-antitrust].
A provision in an intellectual property license restricting the
licensee to use of the licensed property only in a defined product
or service market."

In contrast, "conditions precedent" (as well as "covenants") are
terms of art in contract construction.

See:
"ARTICLE 224
Condition Defined: A condition is an event, not certain to occur,
which must occur, unless its non-occurrence is excused, before
performance under a contract becomes due."

Eben Moglen's greatest error concerning the GPL is his confusion
concerning the terms "conditions precedent" and "scope-of-use".

Sincerely,
Rjack :)

[Hyman Rosen]

Post by Rjack
So what is your point?

Violation of the GPL will be considered copyright infringement
no matter how you might like to natter on about contracts and
flavors of conditions.

[Rjack]

Post by Rjack
So what is your point?

Violation of the GPL will be considered copyright infringement no
matter how you might like to natter on about contracts and
flavors of conditions.

GNUtians never lose -- they just mooooooooooooove the goalposts.

Sincerely,
Rjack :)

[Hyman Rosen]

Post by Rjack

Violation of the GPL will be considered copyright infringement no
matter how you might like to natter on about contracts and flavors of
conditions.

GNUtians never lose -- they just mooooooooooooove the goalposts.

The position of the FSF has never wavered. That violation of the
GPL constitutes copyright infringement is their belief, and it is
so written into the text of the GPL itself. It is only the opponents
of the GPL who desperately cast about for theories to promulgate as
to why the GPL will not work exactly as it says.

[Alexander Terekhov]

Post by Hyman Rosen

Post by Rjack
So what is your point?

Violation of the GPL will be considered copyright infringement
no matter how you might like to natter on about contracts and
flavors of conditions.

How come that judge Saris did NOT consider alleged violation of the GPL
to be copyright infringement in MySQL v. Progress case, Hyman?

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

"In any event, even if MySQL has shown a likelihood of success on these
points, it has not demonstrated that it will suffer any irreparable harm
during the pendency of the suit ..." The judge is not applying a
copyright law standard here (overtuned by the Supreme Court not long
ago), which would have given MySQL an automatic presumption of
irreparable harm that it would be up to Progress to rebut. As well she
shouldn't have; as there were no sufficient grounds for rescinding the
contract, no claim of copyright infringement could succeed. And MySQL
was unable to make a showing on the facts that they would suffer _any_
harm during the pendency of the suit, let alone harm that could not be
repaired through monetary damages after the fact.

MySQL had a plausible (but not proven) case that Progress might have
been at one time in breach of the GPL's contract terms. But in order to
justify rescission of the contract, the breach would have to have been
1) proven, 2) not repaired by subsequent conduct, and 3) not just
material enough to justify damages but of a nature such as to "strike at
the heart of the contract between the parties". These are proper
contract law standards and neither the "automatic termination" language,
nor the claim to be a "copyright-based license", nor Eben Moglen's plea
on behalf of his enforcement weapon swayed the court.

The judge was not "persuaded based on this record that the release of
the Gemini source code in July 2001 didn't cure the breach." So much
for the "automatic termination" clause.

If this were a copyright infringement case, the judge's opinion would
contain boilerplate language about "automatic, rebuttable presumption of
irreparable harm" and a citation to whatever is the usual First Circuit
opinion acknowledging that standard in copyright cases. (It's possible
that said citation will be from another circuit, such as Apple Computer,
Inc. v. Franklin Computer Corp. (3d Cir. 1983), which appears to be used
for this purpose in several circuits.) And whether or not the outcome
would have been different, the text of the opinion certainly would have
been. I harp on this point because it's unambiguous evidence that at
least one federal judge not only doesn't buy "copyright-based license"
but won't even give it the time of day.

Acknowledgement: Michael K. Edwards.

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.)

[Hyman Rosen]

Post by Alexander Terekhov
How come that judge Saris did NOT consider alleged violation of the GPL
to be copyright infringement in MySQL v. Progress case, Hyman?
http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

What in that document leads you to believe that?
That ruling simply denies a request for a preliminary injunction
against Progress, for the reason you quoted.

Post by Alexander Terekhov
The judge is not applying a copyright law standard here (overtuned
by the Supreme Court not long ago), which would have given MySQL an
automatic presumption of irreparable harm that it would be up to
Progress to rebut.

It wasn't much of a standard even while it stood. Here's some
discussion on the Patry blog:
<http://williampatry.blogspot.com/2006/06/presumption-of-irreparable-harm-why.html>
It concludes with
In sum, the presumption of irreparable harm cannot be
justified on a blanket basis, and if applied at all,
is a mere burden-shifting device, not evidence. Once
some contradictory evidence is introduced by the
nonmoving party, the presumption vanishes. If plaintiff
fails to introduce convincing evidence of actual
irreparable harm, the request for injunctive relief must
be denied.

In this case, the plaintiffs had already presented the said
contradictory evidence, showing that they had distributed the
source code to their product. Therefore the proof burden of
irreparable harm fell back onto MySQL.

Post by Alexander Terekhov
The judge was not "persuaded based on this record that the release of
the Gemini source code in July 2001 didn't cure the breach." So much
for the "automatic termination" clause.

Automatic termination is the least convincing part of the GPL.
I believe that one gets a fresh license with every copy, so
automatic termination is cured by formally getting a fresh copy
and then complying with the GPL upon distribution.

Notice, however, that you have now yourself presented evidence
of a US judge reading the GPL, understanding its provisions, and
agreeing that they are legitimate - that not distributing the
source causes a breach of the license.

[Alexander Terekhov]

Hyman Rosen wrote:
[...]

Post by Hyman Rosen
Notice, however, that you have now yourself presented evidence
of a US judge reading the GPL, understanding its provisions, and
agreeing that they are legitimate - that not distributing the

Go to doctor, Hyman. The court didn't rule regarding validity of the GPL
provisions. The court denied injunctive request on other grounds
irrespective of possible invalidity. The GPL utterly failed in MySQL v.
Progress.

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.)

[Hyman Rosen]

The court didn't rule regarding validity of the GPL provisions.

<http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf>
...Affidavits submitted by the parties’
experts raise a factual dispute concerning whether the Gemini
program is a derivative or an independent and separate work under
GPL ¶ 2. After hearing, MySQL seems to have the better argument
here, but the matter is one of fair dispute. Moreover, I am not
persuaded based on this record that the release of the Gemini
source code in July 2001 didn’t cure the breach.

It is perfectly clear from this paragraph that the judge regards the
GPL as legitimate. She regards the case as hinging on how details of
the GPL apply - whether a work is derivative or separate, whether a
source code release cures a breach - but shows no sign of believing
that the GPL as a whole is not a valid license.

All the world except for a few cranks and crazies regards the GPL as
working the way it purports to.

[Alan Mackenzie]

Post by Rjack
For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

Who cares? One's got 7 letters, the other 8. It's the effect it has
which is important, not the name you give it.

Post by Rjack
Sincerely,
Rjack :)

[Rjack]

Post by Alan Mackenzie

Post by Rjack
For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

Who cares? One's got 7 letters, the other 8. It's the effect it
has which is important, not the name you give it.

It matters greatly. Since license are contracts, interpretation
under state common law applies as well as federal copyright law.
Things like privity and 17 USC 301(a) apply. Without a choice of law
provision a copyright license may be interpreted fifty different
ways depending on which state jurisdiction is invoked.

Sincerely,
Rjack :)

[Alan Mackenzie]

Post by Rjack

Post by Alan Mackenzie

Post by Rjack
For the past seventy years no federal court has ever ruled a
copyright license to be anything other than a contract.

Who cares? One's got 7 letters, the other 8. It's the effect it
has which is important, not the name you give it.

It matters greatly. Since license are contracts, interpretation
under state common law applies as well as federal copyright law.
Things like privity and 17 USC 301(a) apply. Without a choice of law
provision a copyright license may be interpreted fifty different
ways depending on which state jurisdiction is invoked.

All sounds rather parochial to me. There are a great deal more than
merely fifty different systems of law under which the GPL operates.

Post by Rjack
Sincerely,
Rjack :)

[Alexander Terekhov]

Alan Mackenzie wrote:
[...]

Post by Alan Mackenzie
All sounds rather parochial to me. There are a great deal more than
merely fifty different systems of law under which the GPL operates.

Yeah, such as

http://ifross.de/

------
Russische Föderation: Open Source Lizenzen als Schenkung? (26.01.2009)
Von: ref. jur. Stefan Labesius

Im Internet-Blog von Anatolij Semenov sind seit einiger Zeit
Antwortschreiben des russischen Finanzministeriums sowie des
Forschungszentrums für Privatrecht beim Präsidenten der Russischen
Föderation veröffentlicht, die unentgeltliche Lizenzverträge nach
russischem Recht (Art. 1235 Zivilgesetzbuch der Russischen Föderation
[ZGB]) als eine Schenkung (Art. 572 ZGB) im schuldrechtlichen Sinne
einordnen. Jene Schreiben sind Antworten auf Anfragen des
Dumaabgeordneten Vjac(eslav Kušc(ëv vom November letzten Jahres in Bezug
auf die die Frage, ob eine solche Rechtegewährung ohne finanzielle
Gegenleistung als eine Schenkung angesehen werden kann. Dies hätte für
deren wirtschaftliche Bedeutung erhebliche Folgen, denn für Schenkungen
gelten besondere Einschränkungen im wirtschaftlichen Verkehr. So sind
Schenkungen zwischen wirtschaftlichen Organisationen (wie z.B.
Kapitalgesellschaften) unzulässig, soweit der Wert des
Schenkungsgegenstandes 3000 Rubel übersteigt (Art. 575 Nr. 4 ZGB).
Problematisch ist dabei schon die Frage der Wertbemessung, insbesondere,
ob z.B. eine vergleichbare kommerzielle Lizenz als Bewertungsgrundlage
herangezogen werden kann. Dementsprechend schließt das Antwortschreiben
des Forschungszentrums für Privatrecht auch mit der Empfehlung für
wirtschaftliche Organisationen, auf entsprechende Lizenzverträge zu
verzichten.
------

LOL.

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.)

[Alan Mackenzie]

Post by Alexander Terekhov
[...]

Post by Alan Mackenzie
All sounds rather parochial to me. There are a great deal more than
merely fifty different systems of law under which the GPL operates.

Yeah, such as

Er, this one for example:

http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

[Alexander Terekhov]

Post by Alan Mackenzie

Post by Alexander Terekhov
[...]

Post by Alan Mackenzie
All sounds rather parochial to me. There are a great deal more than
merely fifty different systems of law under which the GPL operates.

Yeah, such as

http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

Not really convincing example, Alan.

-----
Das Gericht hat rechtsfehlerhafter Weise die
Prüfung eines Verstoßes von Art.81 EGV u. §1 GWB
unterlassen.

Das Urteil ist diesbezüglich *offensichtlich* falsch, denn
einerseits wird die GPL als AGB bezeichnet, andererseits
aber wie ein Individualrechtsgeschäft (read: Individualvertrag)
behandelt, um den §139 BGB anwenden zu können. So geht es nicht!

§139 ist nicht auf AGB anwendbar.
Wenn Klauseln in AGB unwirksam sind, so gilt
nicht §139 BGB sondern §306 BGB. Danach ist
nicht, wie das Gericht irrtümlich meint, der
gesamte Lizenzvertrag nichtig, sondern der
Vertrag bleibt wirksam und nur die
nichtige Klausel wird durch gesetzliche
Vorschriften ersetzt.

Das Urteil könnte in der Berufung durchaus anders
ausfallen. Die vielen Schreibfehler im Urteil
sind ebenfalls bemerkenswert.
-----

See also:

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

regarding the same ruling in

http://www.jbb.de/urteil_lg_muenchen_gpl.pdf

Both courts simply parroted nonsense (including typos) thrown on them by
Welt's attorneys from ifross. Both courts have made fools of themselves.

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.)

[Alan Mackenzie]

Post by Alexander Terekhov

Post by Alan Mackenzie

Post by Alexander Terekhov
[...]

Post by Alan Mackenzie
All sounds rather parochial to me. There are a great deal more than
merely fifty different systems of law under which the GPL operates.

Yeah, such as

http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

Not really convincing example, Alan.

No, I suppose not. An actual court, with an actual judge, ruling
explicitly that the GPL is valid - that it doesn't violate competition
law, or impose any unfair or unreasonable terms, exploring these aspects
in detail. Then enforcing the against the defendant, requiring her to
pay all the plaintiff's costs.

But I wouldn't expect little details like that to convice you, Alex.

Post by Alexander Terekhov
-----
Das Gericht hat rechtsfehlerhafter Weise die

^^ ????

Post by Alexander Terekhov
Pr?fung eines Versto?es von Art.81 EGV u. ?1 GWB
unterlassen.
Das Urteil ist diesbez?glich *offensichtlich* falsch, denn
einerseits wird die GPL als AGB bezeichnet, andererseits
aber wie ein Individualrechtsgesch?ft (read: Individualvertrag)
behandelt, um den ?139 BGB anwenden zu k?nnen. So geht es nicht!
?139 ist nicht auf AGB anwendbar.
Wenn Klauseln in AGB unwirksam sind, so gilt
nicht ?139 BGB sondern ?306 BGB. Danach ist
nicht, wie das Gericht irrt?mlich meint, der
gesamte Lizenzvertrag nichtig, sondern der
Vertrag bleibt wirksam und nur die
nichtige Klausel wird durch gesetzliche
Vorschriften ersetzt.
Das Urteil k?nnte in der Berufung durchaus anders
ausfallen. Die vielen Schreibfehler im Urteil
sind ebenfalls bemerkenswert.
-----

So what? There are people like you and RJack who think they know the law
better than judges and lawyers pretty much everywhere. Just because they
can write in German doesn't make them any more germaine. Did you write
these little snippets, Alex? They look like your style.

And the law of nature as to what happens when you flame somebody else's
spelling/grammar applies here too.

Post by Alexander Terekhov
regards,
alexander.

[Alexander Terekhov]

Alan Mackenzie wrote:
[...]

Post by Alan Mackenzie

Post by Alexander Terekhov

Post by Alan Mackenzie
http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

Not really convincing example, Alan.

No, I suppose not. An actual court, with an actual judge, ruling
explicitly that the GPL is valid - that it doesn't violate competition

Eh? What are you smoking Alan?

http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf

"Defendant further argues that the GPL is invalid due to violations of
Art. 81 of the Treaty establishing the European Community and Section 1
of the German Antitrust Act (GWB) as it prejudices trade between Member
States and leads to a restriction on competition.

[...]

The conditions of the license granted under the GPL must be regarded as
standard terms and conditions that are subject to Sections 305 et seq.
of the German Civil Code (BGB).

[...]

It need not be decided whether, as Defendant argues, the provisions of
the GPL violate Article 81 EC and Section 1 of the German Antitrust Act
(GWB), in particular the prohibition against price fixing and of
predetermining the conditions of secondary contracts in the first
contract. This would, according to Section 139 of the German Civil Code
(BGB), result in the invalidity of the entire license agreement with the
consequence that Defendant would not have a right of use in the software
at all, so that Plaintiff could file a copyright infringement claim for
that reason."

Idiots!

First off, Section 139 BGB does NOT apply to "standard terms and
conditions that are subject to Sections 305 et seq. of the German Civil
Code (BGB)" -- Section *306* (next to 305) applies to "standard terms
and conditions that are subject to Sections 305 et seq. of the German
Civil Code (BGB)".
Secondly,
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "...
if the GPL is legally ineffective, the user does not have a license and
is thus violating copyright law. On the face of it, that sounds
plausible, but it is not. If somebody offers software on the Internet
for downloading and links the download with invalid general terms, he
can hardly sue for copyright infringement. Instead, the validity of the
standard terms is a matter for the software distributor: if he wants to
use invalid contractual terms, he bears the risk of their use. It would
violate equity and good faith if he were allowed to sue others merely on
the grounds that his license terms were invalid."

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.)

[Hyman Rosen]

Post by Alexander Terekhov
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

Is the author of this incorrectly reasoned paper Rjack?
It seems to spout similar errors and natters on about conditions.
For example,
If you pass software to anybody else or use it in another
computer, you (and the third person) automatically lose
your right to use the software. Everything courts had said
on the (in-) validity of contractual use restrictions in
the software business is now going to be undermined by the
model of the condition subsequent.

The extra permissions of the GPL apply when copyright law would
otherwise prohibit you from doing something. Since copyright law
allows resale of software and running it on different machines,
the GPL is completely silent.

[Alexander Terekhov]

Post by Hyman Rosen

Post by Alexander Terekhov
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

Is the author of this incorrectly reasoned paper Rjack?

No. The author is

http://en.wikipedia.org/wiki/Thomas_Hoeren

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.)

[Alan Mackenzie]

Post by Alexander Terekhov
[...]

Post by Alan Mackenzie

Post by Alexander Terekhov

Post by Alan Mackenzie
http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

Not really convincing example, Alan.

No, I suppose not. An actual court, with an actual judge, ruling
explicitly that the GPL is valid - that it doesn't violate competition

Eh? What are you smoking Alan?
http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
"Defendant further argues that the GPL is invalid due to violations of
Art. 81 of the Treaty establishing the European Community and Section 1
of the German Antitrust Act (GWB) as it prejudices trade between Member
States and leads to a restriction on competition.

That is true. This, together with the defendant's other arguments, were
comprehensively rejected by the judge, as you well know.

I suggest you read the judge's first sentence under
"Entscheidungsgruende" ("Argument"):

"Die zulaessige Klage ist zum weit ueberwiegenden Teil begruendet."
(This valid complaint is justified to an overwhelming degree).

Post by Alexander Terekhov
It need not be decided whether, as Defendant argues, the provisions of
the GPL violate Article 81 EC and Section 1 of the German Antitrust Act
(GWB), in particular the prohibition against price fixing and of
predetermining the conditions of secondary contracts in the first
contract. This would, according to Section 139 of the German Civil Code
(BGB), result in the invalidity of the entire license agreement with the
consequence that Defendant would not have a right of use in the software
at all, so that Plaintiff could file a copyright infringement claim for
that reason."
Idiots!

You don't like judges, do you? That argument is perhaps too
sophisticated for you - If the GPL is invalid, then these people
clearly have no license at all to use the software. So it's breach of
copyright whichever way you look at it.

Post by Alexander Terekhov
First off, Section 139 BGB does NOT apply to "standard terms and
conditions that are subject to Sections 305 et seq. of the German Civil
Code (BGB)" -- Section *306* (next to 305) applies to "standard terms
and conditions that are subject to Sections 305 et seq. of the German
Civil Code (BGB)".

Feel free to get into the BGB, with all its obscure cross referencing
and abstruse formalisms.

Post by Alexander Terekhov
Secondly,
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "...
if the GPL is legally ineffective, the user does not have a license and
is thus violating copyright law. On the face of it, that sounds
plausible, but it is not.

It's not only plausible, it's the law, certainly here in Germany. A
judge has so judged.

Post by Alexander Terekhov
If somebody offers software on the Internet for downloading and links
the download with invalid general terms, he can hardly sue for
copyright infringement.

I wouldn't know. It's a somewhat hypothetical case.

Post by Alexander Terekhov
Instead, the validity of the standard terms is a matter for the

Or the judge.

Post by Alexander Terekhov
if he wants to use invalid contractual terms, he bears the risk of
their use. It would violate equity and good faith if he were allowed
to sue others merely on the grounds that his license terms were
invalid."

Maybe it would. But that's somewhat hypothetical, too. The GPL is
valid in Germany, and this has been confirmed by a judge.

Post by Alexander Terekhov
regards,
alexander.

[Alexander Terekhov]

Alan Mackenzie wrote:
[...]

Post by Alan Mackenzie

Post by Alexander Terekhov
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "...
if the GPL is legally ineffective, the user does not have a license and
is thus violating copyright law. On the face of it, that sounds
plausible, but it is not.

It's not only plausible, it's the law, certainly here in Germany. A
judge has so judged.

Post by Alexander Terekhov
If somebody offers software on the Internet for downloading and links
the download with invalid general terms, he can hardly sue for
copyright infringement.

I wouldn't know. It's a somewhat hypothetical case.

Post by Alexander Terekhov
Instead, the validity of the standard terms is a matter for the

Or the judge.

Post by Alexander Terekhov
if he wants to use invalid contractual terms, he bears the risk of
their use. It would violate equity and good faith if he were allowed
to sue others merely on the grounds that his license terms were
invalid."

Maybe it would. But that's somewhat hypothetical, too. The GPL is
valid in Germany, and this has been confirmed by a judge.

Alan, the author of "The first-ever ruling on the legal validity of the
GPL - A Critique of the Case" (PDF above) is also a judge. An appellate
judge.

http://www.oii.ox.ac.uk/events/details.cfm?id=228

-----
The EU Database Protection Directive: Intellectual Property Rights and
Public Access to Information

Thursday 18 June 2009 16:30 - 18:00

Dr Thomas Hoeren, Head of the Institute for Information,
Telecommunications and Media Law of the University of Muenster

Location: Oxford Internet Institute, 1 St Giles, Oxford, OX1 3JS. This
event is open to the public. If you would like to attend please email
your name and affiliation, if any, to: ***@oii.ox.ac.uk

The European Court of Justice has recently decided several cases
regarding the EU database protection directive and its impact on a sui
generis right to information. Starting with the protection of horse
racing data, the ECJ is now up to decide whether a compilation of
medieval poetry in a book is protected against re-use of its structure.
All these cases might lead to a monopolistic right in information and
cause fear whether the free access of the public to information might be
undermined by new intellectual property rights.

Dr Hoeren will examine the leading ECJ cases and try to determine
whether the database right is efficent in the light of constitutional
and ethical meta-values.

About the speaker

Dr Hoeren is the Head of the Institute for Information,
Telecommunications and Media Law of the University of Muenster
(Germany). He also works as a judge at the Court of Appeal of Dusseldorf
(Copyright Senate).
-----

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.)

[Alan Mackenzie]

Post by Alexander Terekhov
[...]

Post by Alan Mackenzie

Post by Alexander Terekhov
if he wants to use invalid contractual terms, he bears the risk of
their use. It would violate equity and good faith if he were allowed
to sue others merely on the grounds that his license terms were
invalid."

Maybe it would. But that's somewhat hypothetical, too. The GPL is
valid in Germany, and this has been confirmed by a judge.

Alan, the author of "The first-ever ruling on the legal validity of the
GPL - A Critique of the Case" (PDF above) is also a judge. An appellate
judge.

Oh is that right? That explains why he puts his stuff out on an Oxford
(England) University web site, does it?

Post by Alexander Terekhov
http://www.oii.ox.ac.uk/events/details.cfm?id=228

[ Snip highly relevant citation of the said judge expressing his views
on collections of horse racing results.]

Post by Alexander Terekhov
regards,
alexander.

[Alexander Terekhov]

Did you follow SCO v. IBM, Doogie?

"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".). "

Also worth noting (from IBM's brief regarding alleged SCO's GPL contract
breach):

"the Court need not reach the choice of law issue because Utah law and
New York law are in accord on the issues that must be reached to
address SCO's sole argument on this motion, namely, that SCO did not
breach the GPL. Throughout this brief, IBM cites to both Utah law and
New York law."

How come that IBM together with renowned Cravath, Swaine & Moore
disagree with mad Moglen regarding the contract nature of the GPL?

I also note that you've referred to MySQL v. Progress... here's a quote:

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf

"COUNT VIII Breach of Contract (GPL License)"

Can you comprehend the word "contract" as in "Breach of Contract (GPL
License)"?

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.)