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Re: how much is too much?

From: Alexander Terekhov
Subject: Re: how much is too much?
Date: Fri, 03 Jun 2005 17:15:16 +0200

Alexander Terekhov wrote:

compare it with sorta "prediction" by the fellow Vice President of 
Corporate Affairs and General Counsel of MontaVista Software.

"G. The GPL Violates U.S. Federal Antitrust Law
 Ranking: 5
 Rating: A good claim to make, even if it will not succeed"

well, we'll see.

BTW, the fellow wrote (in "The GPL Fails as a Copyright License")

But what if the GPL is not, in fact, a contract? What if it is only 
a license? It is difficult to imagine how a license could fail. A 
license is, in essence, a person promising to give up the right to 
prevent another from doing certain things. Non-exclusive licenses 
like the GPL do not even need to be in writing. But what if, for some 
reason, a court held the GPL to be an unenforceable license? In that 
case, all arguments regarding contract validity (writing requirements 
under the UCC, consideration, offer and acceptance) fall away, and 
the licensee (who received the code) reverts back to her common law 
rights. That means that she has the rights to use the program (i.e., 
to copy into memory as necessary to run it) and to make a backup copy. 
What disappears are the restrictions and other limitations in the 
GPL. But these will be the only rights a licensee has—she would have 
no right to distribute, and no right to modify.

That's bullshit. It's permitted under 17 USC 109 (distribution) 
and 17 USC 117 (private adaptation).


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