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Re: Artifex v. Diebold: "The GPL is non-commercial!"

From: Rjack
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Tue, 02 Dec 2008 11:23:00 -0500
User-agent: Thunderbird (Windows/20080914)

David Kastrup wrote:
Rjack <> writes:

Hyman Rosen wrote:

Now, a complaint may say anything at all. Artifex's statement is
not how licensing under the GPL is properly understood, but there
is nothing that can be done to prevent them from saying whatever
they want.
Quite true.

Now the rubber meets the road for Artifex. The burden is on Artifex to
demonstrate the validity of the GPL and that its scope has been
violated by Diebold.

No, the burden is not on Artifex to demonstrate the validity of the GPL.
If there is no valid license, Diebold is in violation of copyright
anyway.  Diebold has to state whether they consider having complied with
the license terms or not.

Aren't you a being a little presumptuous when you simply ignore the
doctrine of promissory estoppel when considering a failed license?

"The American Law Institute in 1932 included the principle of estoppel into § 90 of the Restatement of Contracts, stating:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. —Restatement (Second) removed the requirement that the detriment be "substantial".

The distinction between promissory estoppel and equitable estoppel should be noted:

Equitable estoppel is distinct from promissory estoppel. Promissory estoppel involves a clear and definite promise, while equitable estoppel involves only representations and inducements. The representations at issue in promissory estoppel go to future intent, while equitable estoppel involves statement of past or present fact. It is also said that equitable estoppel lies in tort, while promissory estoppel lies in contract. The major distinction between equitable estoppel and promissory estoppel is that the former is available only as a defense, while promissory estoppel can be used as the basis of a cause of action for damages.
    —28 Am Jur 2d Estoppel and Waiver § 35"

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