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Re: SFLC is SOL


From: Rex Ballard
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:13:58 -0000
User-agent: G2/1.0

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.
Copyright licenses were part of the Copyright Act of 1976, and allowed
a publisher to stipulate the types of use that would be authorized.
This license was designed to help establish what the copyright owner
considered "Fair use".  The license has been established law since
1977, and has been a key element in the success of companies like
Microsoft, Apple, Oracle, Sun, IBM, and numerous other software
publishers.

The GNU Public License is a copyright license, just like any other.
The law does not require a financial exchange, only that the material
be copyrighted.  The license is an agreement between the publisher and
the licensee, in exchange for the access to the copyrighted work, the
licensee agrees comply with the terms of the specific copyright
license covering that agreement.

If you buy a DVD at WalMart, there is a license agreement which
specifies that it is licensed for home entertainment only.  If you
want to have a few friends over to your house to watch the movie, that
is usually still considered home use.  On the other hand, if you
charge some sort of fee for access to your living room, where the
movie will be shown, then you are violating the terms of the copyright
license.

> Hence defendant Versa's Answer:
>
> ======================================================================
>                    FIFTEENTH AFFIRMATIVE DEFENSE
>         (ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred, limited and/or excluded on the grounds that the alleged license
> at issue in this case and/or certain provisions contained therein are
> illegal, unconscionable and barred by public policy as well as by
> statutory and case law.
> =======================================================================
>
> This is not standard boilerplate language. You may accept as gospel that
> at some point before general discovery begins, a Motion to Dismiss based
> on 17 USC 301 and federal preemption as well as a claim of misuse of
> copyright will be filed that challenges the GPL.

One of the elements of a copyright license is that of derivative
works.  If you take someone's copyrighted material, and make changes
to that material, this is a derivative work.  If the original
copyrighted work stipulated terms for the publication of derivative
works, then this is also a legitimate part of the agreement.

I would suspect that Versa will attempt to claim that the GNU
copyrighted work is actually in Public Domain, or was published by the
original author under license terms that were more permissive.  In
some cases, this is a valid argument.  For example, many authors
published their works under both the BSD license AND the GNP Public
License.

In addition, there may be some code which is interfaced through LGPL
or "Plug-In" technologies that may not necessarily need to be
published under the terms of the GPL and LGPL.  For example, the Linux
kernel can call a function contained in a separate shared library
file, the separate file is not covered by GPL or LGPL, but the wrapper
code used to make the call - the code compiled into the kernel, is
still GPL.

The burdon of proof on Versa, even in the preliminary judgement, is to
provide sufficient evidence that the software was not copyrighted, and
was in public domain, or that they were using a copy licensed under
different terms.  If SFLC affirms these assertions, then the judge
could make a preliminary ruling in favor of Versa for some elements of
the software.  If the evidence presented by Versa is not sufficient to
prove a claim of Public Domain - the judge could make a preliminary
ruling against Versa and affirm the Copyright, and therefore the
license.

Once the preliminary ruling is made, it's likely that Versa will then
look for a settlement, at which point, the SFLC will help them
determine the best way to keep what's proprietary proprietary, and
what's GNU GNU.

> Sincerely,
> RJack :)

Rex


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