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Re: SFLC is SOL


From: amicus_curious
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:14:11 -0000



"Hadron" <address@hidden> wrote in message news:address@hidden
Rex Ballard <address@hidden> writes:

On Mar 15, 6:03 pm, RJack <address@hidden> wrote:
Rex Ballard wrote:
> And before ANY of that goes to a jury, both sides have to show their
>  cards to the Judge and to each other.

Before ANY of this even goes to the discovery stage, the defendants
will file FRCP Rule 12 Motions to Dismiss challenging the legal
enforceability of the GPL contract. Only *after* determining the
enforceability of the GPL will the court be in a position to determine
what is relevant in its discovery orders. The enforceability of the
GPL is a matter of law and is determined by the trier of law (the judge
not the jury) hence the repeated language "the license speaks for
itself". One thing to watch in the defendant Answers is the language of
their defenses.

The question at issue is whether copyright licenses are valid.

Answer : yes they are. And no amount of whining and freetardery will
change that.

Things are not that simple, else, why have lawyers? If you, say, take a photograph of the Toledo skyline at nightfall and publish the image, you own the copyright to that image and no one can use it without your permission. But if someone else borrows your camera and goes to the same spot and takes an identical photograph, they can use their photo as they wish. Copyright essentially pertains to "and expression, fixed in a media" as the act reads. Now consider that the binary form of a software program is the image. Then the computer used to compile the software binary is, in effect, the camera and the source code is the directions on where to stand and where to point the camera. Is that source code protected as a unique expression, too? I don't think that question has been answered in court as yet.

If you go back to the first principles and see where the copyright is to protect the artist's expression and reason that is mainly due to protecting the artist's income from his work, the problem gets even more cloudy when there is no financial benefit accruing to the artist in the open source world. No damage, no compensation in the contracts world, hence the insistence that the GPL is not a contract.


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