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Re: SFLC stipulated dismissal of Comtrend without any settlement


From: David Kastrup
Subject: Re: SFLC stipulated dismissal of Comtrend without any settlement
Date: Tue, 04 May 2010 16:13:27 -0000
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1.92 (gnu/linux)

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: 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.

-- 
David Kastrup


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