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Re: More FSF hypocrisy


From: Rjack
Subject: Re: More FSF hypocrisy
Date: Tue, 24 Mar 2009 19:48:57 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

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

Hey, the GPL isn't about patents. So the above has, at most, tangential relevance. But I wasn't talking about the US courts' possible application of Humpty Dumpty language. I really don't much care about whether the GPL is a "contract" in some US American jurisdiction.

I really don't much care about whether the GPL is a "contract" in
some non US American jurisdiction. I am not familiar with the law of
non US American jurisdictions. Where of one cannot speak, thereof
one must be silent. Perhaps you should adopt that philosophy.

I'm saying that for all reasonable values of the term "contract",
the GPL fails to be one - it lacks all the characteristics of a contractual relationship, for instance, the meeting of minds, the negotiation, the passing of something of value in both directions, the definite "handshake" which finalises it.

Where did you ever get such misinformed notions?


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.

No, I'm asking you what you meant by your paragraph, the one that
 ends with "privity".

Why would you ask such a question after expressing, "But I wasn't
talking about the US courts' possible application of Humpty Dumpty
language"?

I'm genuinely puzzled as to what you're trying to say. Care to elucidate?

I am genuinely puzzled as to what you are asking.


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