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

From: David Kastrup
Subject: Re: Artifex v. Diebold: "The GPL is non-commercial!"
Date: Fri, 05 Dec 2008 01:42:34 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Rjack <> writes:

> David Kastrup wrote:
>> The GPL is not a contract but a license.  It spells the conditions you
>> have to meet.
> "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, United
> States Supreme Court (1927.
> "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).
> Methinks someone should start a write-in campaign to inform the
> federal judiciary the error of their ways.

License conditions are usually interpreted according to contract law
(little point in doing them separately).  There are differences,
however: licenses can't state contractual penalties since those depend
on an explicit agreement.  There are also differences with regard to the
treatment and interpretation of possibly invalid terms.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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