Re: the GPL is a license not a contract ..

[Alexander Terekhov]

Alan Mackenzie wrote:
[...]
> 
> >>     http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf
> 
> > Not really convincing example, Alan.
> 
> No, I suppose not.  An actual court, with an actual judge, ruling
> explicitly that the GPL is valid - that it doesn't violate competition

Eh? What are you smoking Alan?

http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf

"Defendant further argues that the GPL is invalid due to violations of
Art. 81 of the Treaty establishing the European Community and Section 1
of the German Antitrust Act (GWB) as it prejudices trade between Member
States and leads to a restriction on competition.

[...] 

The conditions of the license granted under the GPL must be regarded as
standard terms and conditions that are subject to Sections 305 et seq.
of the German Civil Code (BGB).

[...]

It need not be decided whether, as Defendant argues, the provisions of
the GPL violate Article 81 EC and Section 1 of the German Antitrust Act
(GWB), in particular the prohibition against price fixing and of
predetermining the conditions of secondary contracts in the first
contract. This would, according to Section 139 of the German Civil Code
(BGB), result in the invalidity of the entire license agreement with the
consequence that Defendant would not have a right of use in the software
at all, so that Plaintiff could file a copyright infringement claim for
that reason."

Idiots! 

First off, Section 139 BGB does NOT apply to "standard terms and
conditions that are subject to Sections 305 et seq. of the German Civil
Code (BGB)" -- Section *306* (next to 305) applies to "standard terms
and conditions that are subject to Sections 305 et seq. of the German
Civil Code (BGB)". 
Secondly,
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "...
if the GPL is legally ineffective, the user does not have a license and
is thus violating copyright law. On the face of it, that sounds
plausible, but it is not. If somebody offers software on the Internet
for downloading and links the download with invalid general terms, he
can hardly sue for copyright infringement. Instead, the validity of the
standard terms is a matter for the software distributor: if he wants to
use invalid contractual terms, he bears the risk of their use. It would
violate equity and good faith if he were allowed to sue others merely on
the grounds that his license terms were invalid."

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)