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Re: More FSF hypocrisy


From: Rjack
Subject: Re: More FSF hypocrisy
Date: Tue, 24 Mar 2009 17:51:31 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

Alan Mackenzie wrote:
In gnu.misc.discuss Rjack <address@hidden> wrote:

Copyright law as written by Congress is designed to establish
the right to exclude. *ONLY* Congress can create those "in rem"
rights to exclude. See 17 USC section 301(a).

Copyright licenses are designed to waive particular rights to exclude so that licensees may use those personam rights granted
by the copyright owner in contractual privity.

That's a very strange statement.  The GPL is not so designed; it
is designed to "waive particular rights" over any who conform to
its requirements, regardless of the contractual privy.  It is
thus not a contractual license, since there are no contractual
negotiations or handshakes involved.

I'm sure you would like the GPL to not be a contract but strength of
desire or belief doesn't make something true. A U.S. court would
find the GPL to be a contract regardless of what anyone thinks the
GPL is designed to be:

"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. Whether this
constitutes a gratuitous license or one for a reasonable
compensation must, of course, depend upon the circumstances; but the
relation between the parties thereafter in respect of any suit
brought must be held to be contractual, and not an unlawful invasion
of the rights of the owner."; DE FOREST RADIO TEL. CO. V. UNITED
STATES, 273 U. S. 236 (1927).

also:

"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, (United
States Court of Appeals for the Seventh Circuit 2006)

By your statement, are you trying to show that the GPL isn't
really a copyright license, or are you making a historical
assertion, that this was the motivation of the original license
designers?


As explained above the intention of the original designers doesn't
overide settled law except in the minds of a few Freetards who wish
to moooooooooooooooooooooove the goalposts.

Sincerely,
Rjack :)


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