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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 22:45:34 +0200
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Alexander Terekhov <address@hidden> writes:

> David Kastrup wrote:
> [...]
>> Well, actually the GPL most certainly is _not_ enforceable: it is a
>> license, not a contract.  You are free to ignore it.  Unfortunately,
>> [copyright]
>
> LOL. GNUtian dak admits that copyleft is not enforceable.

Hm?  Nothing new with that.  It is even spelled out explicitly in the
GPL.  But copyright is enforceable.  And if you choose not to make use
of copyleft, copyright is all you are left with.

> As for "license, not a contract" GNUtian dak persistently ignores
> court verdicts in disputes initiated by Harald Welte and ifross.de
> gang that established that the GPL is a contract. For example
>
> http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
>
> "On behalf of the people JUDGMENT ... The GPL grants anyone who enters
> into such contract... contractual relationship between the authors and
> Defendant ... incorporated into the contract by virtue of the preamble
> of the GPL ...  Plaintiff, or the licensors from whom Plaintiff
> derives his right, have not violated any contractual obligations
> themselves ... Defendant, who violated contractual obligations"

Once you make use of the license, you are bound by its terms like with
contract law.  There are still differences: a license can't spell out
penalties for non-compliance (since those require a-priori agreement
about terms which can't be assumed for a one-sided license), and
objectionable or discriminatory terms do not become unenforceable.

Germany actually has slightly different legal constructions here as
compared to the U.S., and licenses (and permissions, grants, gifts) have
a different setup in contract law.  So one has to be careful about
overinterpreting German court case's educational value for U.S. or
international law.

> GNUtian dak also ignores this:
>
> http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
> ("COUNT VIII Breach of Contract (GPL License)"
>
> See the word "Contract" in COUNT VIII?
>
>                        COUNT VIII 
>               Breach of Contract (GPL License)
>
> GNUtian dak also ignores the following from prolific and learned IBM's
> lawyers:
>
> "SCO's GPL violations entitle IBM to at least nominal damages on the
> Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
> 20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled"
> that nominal damages are recoverable upon breach of contract); Kronos,
> Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)  ("Nominal damages
> are always available in breach of contract action".). "

Yes, nominal damages: you cause damage to somebody without his
permission, you have to reimburse him.  Obviously.  But not contractual
damages.  You can't put a figure into a license and expect to get it
paid upon breach of the license terms.  You have to state your actual
damages to the court and ask for it.

I am surprised that you act confused like that: you should know better
from all the stuff you cite.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum


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