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Re: More FSF hypocrisy


From: Alan Mackenzie
Subject: Re: More FSF hypocrisy
Date: Wed, 25 Mar 2009 12:22:26 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

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

>> Through being a highly educated native English speaker.  I looked
>>  it up in a dictionary, too.  "Contract" (noun) means agreement 
>> (when it doesn't mean "get smaller", or the like).  I suspect 
>> that the GPL isn't a contract in any USA jurisdiction, rather 
>> that it is for certain purposes subject to some of the same 
>> regulations.

> I cited to the legal principle announced by the United Supreme Court
> that is applied in U.S. jurisdictions concerning the formation of
> intellectual property licenses:

> "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. . ."; DE FOREST RADIO
> TEL. CO. V. UNITED STATES, 273 U. S. 236 (1927).

That's to do with patents, again.  The GPL deals with copyright.  Also,
there is no mention of "contract" in that paragraph - merely that the
consent of a patent holder (to something not here clarified) may be
inferred from his writings or actions.  Or at least it could, back in
the days when horses and carts were state of the art vehicles.  I
think you might have got a bit confused, somewhere.
 
> This principle is applied uniformly by the U.S. courts to determine
> whether an intellectual property license exists (often an implied
> verbal contract). The GPL would be interpreted by the U.S. courts as
> a contract.

What, the principle that a patent holder's words and actions can be
deemed to imply grant of a license, presumably to use his patent?  What
on earth has this got to do with your proposition that the GPL "is" a
contract?

Tell me, at what exact point in time does such a putative contract come
into existence?

How can there be a contract when there's been no agreement between the
parties involved?  That's not a rhetorical question; there cannot be a
contract in place unless the two parties have done something to create
one, like signing a piece of paper on the dotted line, or buying a loaf
of bread at a bakery.

It's undeniable that copyright licenses are frequently governed by
contracts, like when firm A buys (limited) rights to the source code
written by firm B, with the intention of adapting that source for
incorporation into A's product.  In this scenario, it's moot to argue
whether the license is a contract or is merely governed by one - who
cares?

But you seem to be asserting that there's no such thing as a
non-contractual grant of a copyright license, and that anything which
purports to be such is equivalent to putting the work into the public
domain.  I think you're wrong on both points, even under USA legal
systems.  All your arguments are speculative, use the word "would" and
depend on your extrapolations of judges' judgements, rather being the
judgements themselves.

>> OK.  Here's you're paragraph again:

>> : 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.

>> You might have meant this as a definitional criterion for a 
>> copyright license, asserting that the GPL, since it doesn't 
>> satisfy that criterion, isn't a copyright license at all.  (The 
>> bit of the condition it doesn't satisfy is the "in contractual 
>> privity").

>> Alternatively, you might have been talking about why, 
>> historically, copyright licenses arose - that sometime after 
>> Gutenberg invented the press and copyright came into being, 
>> somebody spotted a problem, and the copyright license was 
>> designed as a solution to that problem.

>> I'm asking you which of these interpretations you meant when you 
>> wrote the paragraph, or if neither, what you did mean.

> OK, what I meant was:

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

> If your highly educated native English speaking skills fail in
> helping you to understand this statement, I am not prepared to
> continue parsing what the definition of "is" is.

The paragraph is ambiguous.  OK, you don't want to clear it up, fair
enough.  But it's also wrong in the general case, the GPL being a
couterexample.

> Sincerely,
> Rjack :)

-- 
Alan Mackenzie (Nuremberg, Germany).



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