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Re: Groklaw attacks Alexander


From: David Kastrup
Subject: Re: Groklaw attacks Alexander
Date: Sun, 23 Aug 2009 22:57:54 +0200
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1.50 (gnu/linux)

Rjack <address@hidden> writes:

> David Kastrup wrote:
>> Rjack <address@hidden> writes:
>
>> Daniel Wallace, the person who was prodded by the court about four
>> times in succession to state an actual case, and finally got his
>> nonsense dismissed for lack of doing so?
>
>
> Ah. . . the Wallace v. F.S.F. case eh? If I remember correctly that's
> where arch pro bono "legal expert" for the F.S.F., Professor Eben
> Moglen, lacked the legal acumen (and cojones) to defend a simple
> lawsuit filed by a pro se plaintiff (Wallace). This, after Moglen had
> bragged:
>
> "24. In my role as General Counsel of the Foundation, I have been
> primarily responsible for all worldwide enforcement activity in
> defense of the GPL since 1994..."
> http://www.gnu.org/press/mysql-affidavit.html

"responsible" is not the same as "doing all the work single-handedly".

> Instead of defending the FSF, Moglen hired the expensive
> multi-national law firm of Ice Miller L.L.P. in Indianapolis, IN.
> Doesn't say too much for Moglen's personal "pro bono" expertise huh?

It says that he has kept up with his responsibilities by delegating.

> Either Moglen was unqualified as a lawyer or Wallace was a very tough
> customer (there's no evidence on record that Moglen is admitted to
> practice law in the federal courts or has ever passed a state bar
> exam).

Or Wallace was not worth his personal time since the costs would land
with Wallace anyway.  So there was no point in exerting himself.

> In the Wallace v. F.S.F. case the F.S.F. filed a Motion to Dismiss,
> explicitly claiming that the GPL was a contract:
>
> "Plaintiff's [Wallace] mischaracterization of the GPL in his Response
> has no bearing on the resolution of the pending Motion to Dismiss
> because the Court can examine the GPL itself. "[T]o the extent that
> the terms of an attached contract conflict with the allegations of the
> complaint, the contract controls." Centers v. Centennial Mortg., Inc.,
> 398 F.3d 930, 933 (7th Cir. 2005)."
> http://osdir.com/ml/gnu-misc-discuss-gnu/2009-05/msg00193.html

No, here a case was _cited_ in comparison where indeed a contract was in
issue.  That does not mean that the GPL is a contract as well, but it
means that once where a license is _used_, _then_ the respective license
condition adherence is held to a similar standard as contracts are, so
contract case law is applicable, except that there is no invalidation
through single invalid clauses and that there can't be contractual, but
merely actual damages claimed.

Namely, in the context that this contract case law was cited, the
difference between contract and license was not relevant.

> The F.S.F. has spent years using sites like Groklaw astroturfing the
> claim “The GPL is a License, Not a Contract" and then contradicts
> itself by claiming in federal court that the GPL is a contract.

They did no such thing.  They cited a contract law case which was
applicable in that area where licenses and contracts behave similarly.

> After the lawsuit ends the F.S.F. again claims the GPL is not a
> contract.  That's my definition of a nut-job.

Just because you are a nut who can't figure out the fine points does not
mean everybody else is.

-- 
David Kastrup


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