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Re: Dismissal with prejudice is normal


From: David Kastrup
Subject: Re: Dismissal with prejudice is normal
Date: Fri, 20 Jun 2008 08:32:54 +0200
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

rjack <address@hidden> writes:

> Those SFLC advocates who make *self-serving* statements such as "the
> GPL is enforceable" bear the burden of producing a U.S. court decision
> demonstrating the same. It is not incumbent upon anyone to produce a
> court decision that the GPL *is* unenforceable -- you can't logically
> prove a negative.

Well, actually the GPL most certainly is _not_ enforceable: it is a
license, not a contract.  You are free to ignore it.  Unfortunately,
copyright law _is_ enforceable.  So that's not an option you want to
take.

> SFLC lawyers keep filing the same rote, nonsensical claims in the S.D.N.Y.
> Federal Court -- to wit:
>
> "14. Section 4 of the License states:
>
> You may not copy, modify, sublicense, or distribute the Program except
> as expressly provided under this License. Any attempt otherwise to
> copy, modify, sublicense or distribute the Program is void, and will
> automatically terminate your rights under this License.
>
> Therefore, under the License, any party that redistributes BusyBox in
> a manner that does not comply with the terms of the License
> immediately and automatically loses all rights granted under it. As
> such, any rights Defendant may have had under the License to
> redistribute BusyBox were automatically terminated the instant that
> Defendant made non-compliant distribution of the In-fringing Product
> or Firmware. Since that time, Defendant has had no right to distribute
> BusyBox, or a modified version of BusyBox, under any circumstances or
> conditions."
>
>
> The SFLC's "automatic termination" claims are nonsense. Here's the law
> of the S.D.N.Y. according to The United Stastes Court of Appeals for
> the Second Circuit:
>
> "New York law does not presume the rescission or abandonment of a
> contract and the party asserting rescission or abandonment has the
> burden of proving it".  Graham v. James, 144 F.3d 229 (2d Cir. 1998)

Of course you can't unilaterally rescind a contract.  Except when the
terms of termination are spelled out in the contract itself.  But that's
not even what happened here: this "termination term" is actually not
necessary: of course you don't have permissions granted by the license
without heeding the license terms.  It is just made explicit.

> Why file this nonsense crap, only to voluntarily dismiss time and time
> again?

Because it brings the defendants into compliance?

> The SFLC will NEVER, NEVER, NEVER allow a Federal Court to review the
> GPL license on the merits. They'll dismiss WITH PREJUDICE before
> allowing a meaningful court review to occur.

So far, the defendants have preferred not to go that far but rather come
into compliance.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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