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Re: US court says software is owned, not licensed


From: David Kastrup
Subject: Re: US court says software is owned, not licensed
Date: Wed, 14 Oct 2009 16:24:51 +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:
>>
>>> Alan Mackenzie wrote:
>>>
>>>> Oh, here we go again.  That's FUD, Rjack.  You're well aware that
>>>> that only applies when the other decides to license his code under
>>>> the GPL, possibly as a consequence of his (free) decision to
>>>> incorporate some GPL code into his program.
>>> You and thousands of GNUtians are SORELY confused if you truly
>>> believe that an illegal contract (defined as one against "public
>>> policy") becomes a legally enforceable contract just because
>>> someone freely accepts the contract terms.
>>
>> Now you just need to show
>>
>> a) anything illegal in the GPL
>
> 17 USC 301(a) preempts GPL's sec. 2(b).

"preempts" is not the same as "makes illegal".  Even if any court agreed
with you on that count.  Which it doesn't.

So you add another impossible thing to believe in to your plate.

> When examining a copyright license

You mean, a purported copyright _contract_.

> one of the first things a federal judge does is look for preempted
> terms -- it is mandatory he do so since preemption could possibly
> remove his jurisdiction to even hear the case.

It does not matter.  The client can perfectly well declare that he
considers the GPL illegal or irrelevant or a joke.  Then he just has the
burden to explain what made him assume he could create and distribute
copies.

>> b) that anything illegal in the GPL does not merely invalidate the
>> GPL (after which normal copyright laws and restrictions set in),
> NOT.
>
> A cause of action for promissory estoppal is created. I find it
> curious that you actually believe that because someone relied on
> *your* illegal contract of adhesion offer, you have the right to sue
> them.

Hm?  Did they rely on the license or not?  If they did, why did they
ignore the terms?

> That's real Stallman chutzpah! The ultimate scammer's scam come true.

Not much to see here.  You get a conditional permission and are free to
choose whether you make use of it or not.  But you can't take the
permission and ignore the conditions.

>> Not just one, but two tiny little obstacles.  You don't happen to be
>> the White Queen?
>
> Forget *Through the Looking-Glass*. The fantasy allusions are
> obviously too sophisticated for your little mind to grasp. Besides,
> you're already residing in the delusional Land of GNU.

Good company with existing court practice.

-- 
David Kastrup


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