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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: Fri, 20 Mar 2009 12:07:17 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

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

If you think that a public contract of adhesion such as the GPL
is going to establish a new rule controlling the *distribution* of derivative works then you are clearly mistaken:

The GPL is just a bunch of words. A bunch of words is not by itself a contract.

That you would ignore the simple fact that no contract forms until somebody reasonably interprets the GPL as an offer, and then properly accepts this offer, indicates your very shallow understanding of how contract law works.

"Shallow" eh? What happened to "idiot"?

The the principle that a license is a contract was established in
the DE FOREST RADIO TEL. CO. V. UNITED STATES, 273 U.S. 236 (1927)
Supreme Court decision:

"No formal granting of a license is necessary in order to give it
effect. Any language used by the owner of the patent or any conduct
on his part exhibited to another, from which that other may properly
infer that the owner consents to his use of the patent in making or
using it, or selling it, upon which the other acts, constitutes a
license, and a defense to an action for a tort."
DE FOREST RADIO TEL. CO. V. UNITED STATES, 273 U. S. 236 (1927)

The Appellate Courts explicitly acknowledge the De Forest decision:

“Implicit in that permission was a promise not to sue for copyright
infringement–a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d
673, 677 (9th Cir.1996) (”[A]nonexclusive patent license is, in
essence, “a mere waiver of the right to sue’ the licensee for
infringement.”)(quoting De Forest Radio Telephone & Telegraph Co. v.
United States, 273 U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625
(1927)).“; Jacob Maxwell Inc., v. Veeck, 110 F.3d 749 (11th Cir. 1997).

Why don't you research "implied contracts" and "quasi-contracts"
before you start spouting gibberish that demonstrates your complete
ignorance concerning how contract law works?

I realize that you and Hymen Rosen and Richard Stallman do not
desire for the GPL to be legally interpreted under contract law.
Just because you don't desire something doesn't allow you to
moooooooooooooooove the goalposts.


Before you can analyze the GPL as a contract, you must find specific facts where a contract actually formed.

I think you went astray when you first encountered some cases where a court used contract law to determine a remedy for breach of a license.

I haven't found a single case in the last seventy years of history
where a U.S. court didn't interpret a copyright license under
contract law. Perhaps you'll enlighten us with a case you've found
that contradicts this established principle.

I have cited a plethora of cases from the Supreme Court down to the
district courts where copyright licenses are interpreted as
contracts. Only in the event that a scope of use restriction is
exceeded does copyright law provide non-contractual remedies.

I don't know how much more clearly it can be stated than the Seventh
Circuit's ruling:

"Although the United States Copyright Act, 17 U.S.C. 101 - 1332,
grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (7th Cir., 2006).

How about your beloved CAFC?

"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (CAFC, 1995)

You saw the word contract and assumed that, just because the remedy in the cases that you cited was based on contract law, a contract must have actually formed.

If no contract formed there would be no license. That's a tautology.
So what?

There's about a zillion copies of the GPL floating around and in
any controversy over GPL enforcement the GPL will be asserted.
That's a tautology too.

Sincerely,
Rjack :)



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