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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Rjack
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Tue, 17 Mar 2009 09:02:04 -0400
User-agent: Thunderbird 2.0.0.19 (Windows/20081209)

Rahul Dhesi wrote:
Rjack <address@hidden> writes:

GNU fans never lose, they just mooooooooooooooooooove the goalposts.

First.

I have made a consistent claim in a long history of internet
postings that, "The GPL is unenforceable under U.S. copyright law".
These posts consist of legal reasoning presented in the general form
of the arguments that are presented in U.S. courts. These arguments
consist chiefly of citations to statutes and prior legal decisions
(the doctrine of "stare decisis"). The laws passed by the
legislatures in the United States (both federal and state) mean what
the men in the black robes say they mean. Why? Because that's the
way our constitutional system of government is designed.

Recall that I claimed that, "The GPL is unenforceable under U.S.
copyright law". This has *always* been the point of my posts, that
the courts in U.S. jurisdictions will not order the illegal terms of
the GPL to be enforced. So far, the GPL has never been interpreted
under U.S. copyright law as applied through the application of state
contract (common law) by a U.S. Some would argue the end justifies
the means. court.

Some would like to argue the end justifies the means and recast my
claim to suit their goals ("build a straw man fallacy, "move the
goalposts", "change the subject"). No amount of extrinsic, non-legal
argument will settle questions concerning the legal enforceability
of the GPL in U.S. courts. That question will be answered *only
after* a court (probably several) of competent jurisdiction
interprets the legal effect of the GPL under applicable copyright
and contract law. Ten thousand voluntary dismissals will not settle
the question of the *legal enforceability* of the GPL -- only a
court ruling on the specific GPL terms will settle that question.

I feel your pain. Asking for the maximum possible, and then settling for a lot less, is a common strategy that is, unfortunately, embedded into the adversary system of justice.

Rjack, if it were up to you, how would you improve the system? Would you propose a rule that once a party asks for a certain amount, it is not permitted to take any less? How would you enforce this?

I would not favor such a rule at first glance.

If I were asking for damages in a court of law, I first would
research the legal history and application of the law of damages to
guide me in my judgment. Here's a start:

"Damages, in a legal sense, is the sum of money the law imposes for
a breach of some duty or violation of some right. Generally, there
are two types of damages: compensatory and punitive. (The term
"damages" typically includes both categories, but the term, "actual
damages" is synonymous with compensatory damages, and excludes
punitive damages.)"

http://topics.law.cornell.edu/wex/damages

Research. Read. Research.

Sincerely,
Rjack :)








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