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Re: Microsoft needs a help strategy

From: David Kastrup
Subject: Re: Microsoft needs a help strategy
Date: Thu, 29 Jan 2009 00:20:30 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

ZnU <znu@fake.invalid> writes:

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

Uh no.  If a provision of the kind "you may freely redistribute if you
heed the following conditions" is not legally valid, and you have no
other right to freely redistribute without that provision (and copyright
law does not give you such a right), then you may not freely
redistribute, period.  So there is no defendant with a substantial
interest in such a finding.

Defendant has nothing to gain by asking the court to decide that his
conditional permission is not legally valid.

> 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.

The GPL is not a shrink-wrap contract like the EULAs.  Acceptance of the
GPL is optional for default software use.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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