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Re: SFLC stipulated dismissal of Comtrend without any settlement


From: RJack
Subject: Re: SFLC stipulated dismissal of Comtrend without any settlement
Date: Tue, 04 May 2010 16:13:31 -0000
User-agent: Thunderbird 2.0.0.24 (Windows/20100228)

David Kastrup wrote:
Alexander Terekhov <address@hidden> writes:

Hyman Rosen wrote: [...]
According to this paper, <http://www.sapnakumar.org/EnfGPL.pdf> the GPL is not a contract.
"Part IV proposes that the GPL is a failed contract, which lacks
only consideration. It advocates enforcing the license through
state promissory estoppel law and the Copyright Act."

LOL. I propose Sapna Kumar is just crazy. The GPL is full of consideration on both sides.

Licensor's consideration is a promise not to sue for copyright infringment.

Licensee's consideration is all the enforcable obligations imposed
by the license.

You are confusing "consideration" with "contribution". Look up the "consideration" in a law dictionary, it is legalese.

And there is no "promise not to sue" in the GPL.  You can always sue,
 with different chances of winning depending on circumstances.  The
GPL spells out the circumstances quite clearly, so that there is not
much of an ambiguity (which is the main reason most cases are settled
without judicial ruling).  But suing is always an option, and I
consider it likely that a "promise not to sue" would be considered
invalid by courts:

Yeah...

"Implicit in that permission was a promise not to sue for copyright
infringement--a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d 673,
677 (9th Cir.1996) ("[A] nonexclusive patent license is, in essence, 'a
mere waiver of the right to sue' the licensee for infringement.")
(quoting De Forest Radio Telephone & Telegraph Co. v. United States, 273
U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625 (1927))."

http://ftp.resource.org/courts.gov/c/F3/110/110.F3d.749.96-2636.html

the whole point of a contractual relation is putting something on a
legal footing, and letting a court check whether the conditions for a
"promise not to sue" are met would be paradoxical, and not being able
 to let it be checked would render the whole construct legally
absurd.

Sincerely,
RJack :)


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