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Re: Sharing the GPL source code, with value addition by vendor specific


From: Alexander Terekhov
Subject: Re: Sharing the GPL source code, with value addition by vendor specific to his hardware?
Date: Wed, 08 Dec 2010 16:03:50 -0000

David Kastrup wrote:
> 
> Hyman Rosen <address@hidden> writes:
> 
> > On 10/13/2010 8:17 AM, Alexander Terekhov wrote:
> >> Hey Hyman how is the progress to get the source code for a refurbished
> >> Insignia player you so badly needed some time ago, silly?
> >>
> >> <chuckles>
> >
> > Nothing yet. This is, of course, why the SFLC is still pressing
> > its suit against Insignia. If it gets to trial, Insignia will be
> > in the rather odd position of having promised to comply with the
> > GPL in its manual. Sounds like promissory estoppel to me.
> 
> Promissory estoppel is a defense, not a complaint.

Dak, the concepts of pledge breach (plegii fractio) and estoppel
(including promissory estoppel) are related.

See e.g.

http://architects.dzone.com/articles/ibm-breaks-patent-pledge
("IBM Breaks Patent Pledge; Breaches the OSS Community's Trust
(Updated)")

See also:

http://www.ehow.com/about_5510397_explanation-promissory-estoppel-law.html

"Explanation of Promissory Estoppel Law

By Constitution Guru, eHow Contributor

updated: October 9, 2009

Promissory estoppel law is a legal theory that allows a person to
recover money in a situation that resembles a contract but lacks the
formalities required for an enforceable contract. Promissory estoppel is
an equitable principle, meaning it is a legal rule created and enforced
by courts and judges according to what the judges feel is fair in the
individual circumstances of the case.

Generally

Promissory estoppel law fills in a gap that, if left unfilled, would
leave some people unfairly without a legal remedy. Promissory estoppel
is a way to enforce an agreement that does not meet the legal
requirements for a contract. Estoppel is a Latin term meaning "to stop."
Basically, the defendant is stopped from refusing to honor a promise
made to the plaintiff. The defendant is required to honor the promise
even though it is not a binding contract.

History

The history of promissory estoppel goes back hundreds of years to the
common law of English courts. The law developed as an exercise of the
courts' independent power to grant legal and equitable remedies where
the statutory laws of Parliament were insufficient to meet every
conceivable set of facts. Promissory law developed to aid those who
deserved a remedy but did not meet the strict legal requirements to
prove a contract remedy.

Types

Promissory estoppel is also referred to as "justifiable reliance," or
simply "reliance." The details can vary from state to state, but as a
general matter the guiding principle is that a claim exists where the
plaintiff took some action in reasonable reliance on a promise made by
the defendant. For example, if I tell you that I will sell you a piece
of property for a certain price, and then you sell your current home in
reliance on my promise to sell you a new site for your home, you
probably will be able to enforce that promise even if we never enter
into a written contract.

Elements

To prove a claim for promissory estoppel, the plaintiff must show that
the defendant made a clear and definite promise, that the plaintiff
justifiably and substantially relied on that promise and suffered damage
as a result, that the defendant should have been aware the plaintiff
would rely on the promise, and that enforcing the promise like a
contract will be just and fair. Justifiable and substantial reliance
means the plaintiff had a sound, rational reason for relying on the
promise.

Misconceptions

A promissory estoppel is similar in character to a contract claim, but
in fact, the two claims are distinctly different. A contract claim is
based in law, whereas a promissory estoppel is firmly grounded in
equity. A contract requires proof of offer and acceptance, as well as
consideration, while promissory estoppel requires no such formalities. A
contract claim is based on the reasonable expectations of the
contracting parties, while promissory estoppel is based on what is
reasonable and fair under the circumstances."

AND

http://www.duhaime.org/LegalDictionary/E/Estoppel.aspx

"Estoppel Definition: A rule of law that when person A, by act or words,
gives person B reason to believe a certain set of facts upon which
person B takes action, person A cannot later, to his (or her) benefit,
deny those facts or say that his (or her) earlier act was improper.

Related Terms: Waiver By Conduct, Promissory Estoppel

Estoppel is the law's way of saying "you can't have your cake and eat
it."

One British judge said, in 1862:

"A man shall not be allowed to blow hot and cold - to affirm at one time
and deny at another - making a claim on those to whom he has deluded to
their disadvantage, and founding that claim on the very matters of the
delusion."

Estoppel has a rich history in English law, being described by William
Blackstone as:

"An estoppel ... happens where a man hath done some act or executed some
deed which estops or precludes him from averring any thing to the
contrary.

A 1891 English court decision summarized estoppel as:

"... a rule of evidence which precludes a person from denying the truth
of some statement previously made by himself".

In 1923, Justice Idington of Canada's Supreme Court adopted these words
in regards to estoppel:

"... if a man, whatever his real meaning may be, so conducts himself
that a reasonable man would take his conduct to mean a certain
representation of facts, and that it was a true representation, and that
the latter was intended to act upon it in a particular way, and he with
such belief does act in that way to his damage, the first is estopped
from denying that the facts were as represented."

In 1980, Lord Denning had opportunity to try his hand at describing
estoppel:

"... the word estoppel only means stopped. You will find it explained by
Coke. It was brought over by the Normans. They used the old French
estoupail. That meant a bung or cork by which you stopped something from
coming out. It was in common use in our courts when they carried on all
their proceedings in Norman-French.

"Littleton writes in the law-French of his day (15th Century) using the
words pur ceo que le baron est estoppe a dire ceo; meaning simply that
the husband is stopped from saying something.

"From that simple origin there has been built up over the centuries in
our law a big house with many rooms. It is the house called Estoppel.

"In Coke's time, it was a small house with only three rooms, namely
estoppel by matter of record, by matter of writing and by matter 'in
pais'. But by our time, we have so many rooms that we are apt to get
confused between them. Estoppel per rem judicatum, issue estoppel,
estoppel by deed, estoppel by representation, estoppel by conduct,
estoppel by acquiescence, estoppel by election or waiver, estoppel by
negligence, promissory estoppel, proprietary estoppel, and goodness
knows what else.

"These several rooms have this much in common: they are all under the
same roof. Someone is stopped from saying something or other, or doing
something or other, or contesting something or other. But each room is
used differently from the others. If you go into one room, you will find
a notice saying 'estoppel is only a rule of evidence'. If you go into
another room you will find a different notice: 'estoppel can give rise
to a cause of action'.

"Each room has its own separate notices. It is a mistake to suppose that
what you find in one room, you will find in the others.""

regards,
alexander.

"Plaintiff Erik Andersen is a work-from-home father who has gifted 
to the world software underlying a significant body of consumer
electronics." ROFL
                     -- SFLC crooks Ravicher, Williamson, Spiegel
                
--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)


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