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Re: Microsoft needs a help strategy

From: ZnU
Subject: Re: Microsoft needs a help strategy
Date: Wed, 28 Jan 2009 21:15:26 -0500
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <8563jzm30h.fsf@lola.goethe.zz>, David Kastrup <> 

> 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.

This argument would be persuasive if judges were the legal equivalent of 
strictly-validating XML parsers, required to reject entire documents if 
portions of them were invalid). But this is not, in fact, the case.

While I don't consider this outcome particularly likely, there is 
absolutely no reason why a judge couldn't, in principle, find that GPL 
validly granted permission to redistribute, but that (say) the provision 
requiring code disclosure for derivative works was invalid.

> > 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.

And whether this matters with respect to its legal enforcability is one 
of many unaswered questions about EULAs.

"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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