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

[David Kastrup]

Rjack <user@example.net> writes:

> David Kastrup wrote:
>
>> To have the GPL evaluated on "its merits", the defendant has to state
>> that he considers being in compliance with the GPL. 
>
> And so, just why does the defendant *have* to state "that he considers
> being in compliance with the GPL."? Is there a gun against his head?

To have the GPL evaluated on its merits.  If that's not his intent, he
can state otherwise, and the case is not about the GPL.  The court has
better things to do than evaluating a license that is not relevant to
the case because the defendant does not claim to use it.

> Why couldn't a defendant just as easily claim that Section 2(b) of the
> GPL was:
>
> (1) Contractually unenforcible.
> (2) Preempted by 17 USC 301(a).

Because in contrast to a contract, there is no presumed agreement
between the parties with a license.  If the defendant does not even
claim to be in possession of a valid license, it is not the business of
the court to mangle the license into something better expressing the
common understanding of the parties, because there has been no agreement
between the parties in the first place.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum