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Re: Microsoft needs a help strategy

From: ZnU
Subject: Re: Microsoft needs a help strategy
Date: Wed, 28 Jan 2009 18:01:02 -0500
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <85bptrnsam.fsf@lola.goethe.zz>, David Kastrup <> 

> Rjack <> writes:
> > Hyman Rosen wrote:
> >> Rjack wrote:
> >>> It is a verifiable fact that ever completed suit filed by the SFLC
> >>> was terminated by the plaintiff's voluntary dismissal. Just show us
> >>> the legal documents.
> >>
> >> It is a verifiable fact that in each such case the defendants
> >> made the GPLed sources available, as asked in the complaint
> >> against them, when they were not doing so at some point before
> >> the complaint was filed.
> >>
> >> It remains the case that no one is using your (incorrect) legal
> >> theories to openly violate the terms of the GPL. Everyone acts
> >> as if the GPL is a valid license which means just what it says,
> >> even people who are opposed to its principles.
> >
> > They don't use my legal theories because GPL advocates will NEVER,
> > NEVER allow the GPL to be reviewed on its merits by a federal judge --
> > they know the GPL is voidable.
> It most certainly is, and it states so itself:
>       9. Acceptance Not Required for Having Copies.
>       You are not required to accept this License in order to receive or
>     run a copy of the Program.  Ancillary propagation of a covered work
>     occurring solely as a consequence of using peer-to-peer transmission
>     to receive a copy likewise does not require acceptance.  However,
>     nothing other than this License grants you permission to propagate
>     or modify any covered work.  These actions infringe copyright if you
>     do not accept this License.  Therefore, by modifying or propagating
>     a covered work, you indicate your acceptance of this License to do
>     so.
> The recipient of GPLed software is free to declare the GPL void and
> revert to default copyright rules.
> That makes it rather hard to have the GPL reviewed on its merits: it
> requires the defendant stating (and persisting on the statement rather
> than settling and coming into compliance) that he is in compliance with
> the GPL.  Only in that case will the GPL adherence get a judicial review
> (otherwise, just plain copyright law is involved).  All cases so far in
> U.S. jurisdiction have been cut&dry to a degree where no defendant was
> stupid enough to even try that course.

It merely requires a defendant who believes that the "viral" provisions 
of the GPL are not legally valid and that has a substantial interest in 
such a finding.

Most commercial GPL violations seem to be the result of apathy or just 
applying general corporate policy without regard for the fact that it 
happens to violate the GPL, not the result of companies that have a 
substantial interest in withholding source and are committed to a 
well-developed legal theory that allows this. So when violators are 
caught, they tend to just bring themselves into compliance rather than 
putting up a fight. This doesn't mean they necessarily believe the viral 
clauses of the license are legally valid; it generally just means they 
don't see any profit in attempting to prove they're not. They probably 
don't really care all that much.

Mind, you, I tend to think those clauses probably are legally valid and 
enforceable, but the body of case law regarding the legal validity of 
EULAs generally is not very well developed at present, so I wouldn't say 
this it's a completely settled question.

"What the cynics fail to understand is that the ground has shifted beneath them
-- that the stale political arguments that have consumed us for so long no 
apply. The question we ask today is not whether our government is too big or too
small, but whether it works [...]"        -- Barack Obama, January 20th, 2008

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