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Re: JMRI case -- Implementation of the Federal Circuit's Opinion

From: David Kastrup
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Thu, 08 Jan 2009 23:16:44 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Rjack <> writes:

> Hyman Rosen wrote:
>>> "The answer, I suspect, is that the Free Software Foundation is not
>>> accepting compliance with the GPL as a solution. It wants more. It
>>> wants to push Cisco around and it wants money. Here's how it thinks
>>> it can do that." The Software Lawyer
>> If the only consequence of being caught out of compliance is
>> to comply, then no one will be careful to properly comply from
>> the start. 
> The only consequence of being caught out of compliance is to receive a
> scathing, withering and punitive Rule 41(A) Voluntary Dismissal by the
> FSF.  Scathing, withering and punitive because we have to listen to
> the unverifiable bullshit propaganda about what the FSF allegedly won.
> The FSF will NEVER, NEVER, NEVER allow a lawsuit to proceed to the
> point where a federal judge will ever actually evaluate the GPL's
> sec. 2(b) on the merits:

To have the GPL evaluated on "its merits", the defendant has to state
that he considers being in compliance with the GPL.  Up to now, none of
the defendants put forward that theory.  So there is no point for the
judge to go to the GPL in detail when the defendant does not claim use
of the license: its acceptance is quite voluntary.  If the defendant did
not accept it, the case is not about the GPL or its merits.

> This particular contractual covenant is total legal gibberish.

Compared with the usual legal texts covering copyrightable material, it
is very clear.  And I have yet to see the "I've read the text, but it
was gibberish to me so I assumed I could do what I want" defense with
respect to the GPL.

> In the Second Circuit, the district courts know full well the
> difference between a contractual covenant, a contractual condition
> precedent and a delimiting scope of use restriction in a copyright
> license.

Which is the reason why there is not much of a concern if the lower
courts would mess up a ruling.  Since they quite consistently rule in
the manner that gets our good Alexander up in ruffles and calls of
inebriation, we have not seen significant GPL coverage there, however.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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