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Re: Psystar's legal reply brief in response to Apple


From: RJack
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:58:11 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv:1.9.2.7) Gecko/20100713 Thunderbird/3.1.1

On 8/7/2010 10:53 PM, ZnU wrote:
In article<address@hidden>,
RJack<address@hidden>  wrote:

On 8/7/2010 4:08 PM, ZnU wrote:
In article<address@hidden>, Alexander
Terekhov<address@hidden>   wrote:

ZnU wrote: [...]
nothing particularly strong to favor the opposite position.
You've demonstrated that it's possible to fail to create a
condition, but have advanced no compelling argument that the
GPL, specifically, fails to do so.

Q) I want to create a full blown derivative work (a copy of
which I may want to distribute later) or a copy verbatim
(which I may want to distribute later) of the GPL'd work...
what are the conditions in order to gain the rights to do
that?

A) None. The GPL has no conditions precedent.

Please prove me wrong.

I'm not interested in whatever games you want to play with
shifting the burden of proof. In Jacobsen v. Katzer, the
Artistic License was found to establish valid conditions, such
that ignoring them while engaging in actions otherwise not
permitted by copyright law was found to be copyright violation.
You either need to explain a) specifically why the Artistic
License created valid conditions but the GPL did not or b) why I
should believe your opinion over that of a federal court.

Posting a bunch of general information about conditions vs.
covenants, which is what you keep doing, is not especially
interesting when there is a ruling that appears to have
addressed the issue at hand far more directly.


The Artistic License is not the GPL License. Since you wish to
eschew researching and reasoning with "general information"
perhaps you should explain how you justify generalizing about the
Artistic License in relation to the GPL.

You are indeed correct that "you are not interested in carrying any
burden of proof". You claim the Artistic License generalizes to the
GPL but you can't prove it. It is you who are playing games by
hypothesizing and then refusing to carry your burden of proof.

You're simply playing games. There is a _huge_ difference between
reasoning from general principles in the presence of case law that
apparently _disagrees_ with your conclusions, and using that same
case law to predict the outcome of an _extremely similar_ case. If
you believe there is some key difference between the Artistic
License and GPL that distinguishes these cases, name it.

You've got it backwards again. You're the one claiming the GPL is
enforceable. I claim the GPL doesn't contain a valid condition
precedent. It is your burden to point to the condition precedent in the
GPL that establishes infringement. All you have to do is show what
*event* must be satisfied *before* copyright permissions are granted.
Just show me the condition precedent. Seems simple enough to me.

Note that the appeals court, in its ruling, talks in fairly general
terms about "public licenses" and explicitly cites "GNU/Linux" --
complete with "GNU" -- as an example of software released under such
a license.

So. the court observed  there are "open source" licenses. So what?
There are also reams of closed source licenses. So what?

It explicitly raises the issue of whether releasing software under
such public licenses preserves the right of authors to seek
copyright remedies and lays out the case that it does.

Ah... A perfect Straw Man. No one is claiming that releasing software
under a "public license" (however that is legally defined) abrogates
copyrights.

So that you can't muddy the water, here is what I claim:

I am claiming that under U.S. law, a copyright license -- all copyright
licenses -- must be legally enforceable contracts under the common law
of the fifty states *as well as* federal copyright law.

I claim that the GPL is legally unenforceable under the common law of
contracts *and* is preempted under federal copyright law.

Sincerely,
RJack :)










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