In gnu.misc.discuss Alexander Terekhov <[email protected]> wrote: > Alan Mackenzie wrote: > [...] >> >> http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf >> > Not really convincing example, Alan. >> No, I suppose not. An actual court, with an actual judge, ruling >> explicitly that the GPL is valid - that it doesn't violate competition
> Eh? What are you smoking Alan? > http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf > "Defendant further argues that the GPL is invalid due to violations of > Art. 81 of the Treaty establishing the European Community and Section 1 > of the German Antitrust Act (GWB) as it prejudices trade between Member > States and leads to a restriction on competition. That is true. This, together with the defendant's other arguments, were comprehensively rejected by the judge, as you well know. I suggest you read the judge's first sentence under "Entscheidungsgruende" ("Argument"): "Die zulaessige Klage ist zum weit ueberwiegenden Teil begruendet." (This valid complaint is justified to an overwhelming degree). > It need not be decided whether, as Defendant argues, the provisions of > the GPL violate Article 81 EC and Section 1 of the German Antitrust Act > (GWB), in particular the prohibition against price fixing and of > predetermining the conditions of secondary contracts in the first > contract. This would, according to Section 139 of the German Civil Code > (BGB), result in the invalidity of the entire license agreement with the > consequence that Defendant would not have a right of use in the software > at all, so that Plaintiff could file a copyright infringement claim for > that reason." > Idiots! You don't like judges, do you? That argument is perhaps too sophisticated for you - If the GPL is invalid, then these people clearly have no license at all to use the software. So it's breach of copyright whichever way you look at it. > First off, Section 139 BGB does NOT apply to "standard terms and > conditions that are subject to Sections 305 et seq. of the German Civil > Code (BGB)" -- Section *306* (next to 305) applies to "standard terms > and conditions that are subject to Sections 305 et seq. of the German > Civil Code (BGB)". Feel free to get into the BGB, with all its obscure cross referencing and abstruse formalisms. > Secondly, > http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf "... > if the GPL is legally ineffective, the user does not have a license and > is thus violating copyright law. On the face of it, that sounds > plausible, but it is not. It's not only plausible, it's the law, certainly here in Germany. A judge has so judged. > If somebody offers software on the Internet for downloading and links > the download with invalid general terms, he can hardly sue for > copyright infringement. I wouldn't know. It's a somewhat hypothetical case. > Instead, the validity of the standard terms is a matter for the > software distributor: Or the judge. > if he wants to use invalid contractual terms, he bears the risk of > their use. It would violate equity and good faith if he were allowed > to sue others merely on the grounds that his license terms were > invalid." Maybe it would. But that's somewhat hypothetical, too. The GPL is valid in Germany, and this has been confirmed by a judge. > regards, > alexander. -- Alan Mackenzie (Nuremberg, Germany). _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
