In 2004, Pamela Jones, the Sarah Palin of the software world, smartly published a bit of brilliant legal analysis and announced to the World that copyright licenses were not contracts:
“The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling”, Sunday, December 14 2003 @ 09:06 PM EST Pamela Jones at Groklaw. http://www.groklaw.net/article.php?story=20031214210634851 Her reasoning, citing Eben Moglen of the Free Software Foundation, was that the GPL is a license and not a contract, and therefore not subject to interpretation under the state common law of fifty different states thus rendering it infallible in federal court: "So when you read people say that the GPL is perhaps not enforceable because you don't sign it or click on a form, or because of a lack of privity, or because there is a lack of consideration, or some such, you'll understand that the person misunderstood and thought in terms of contract law. It's a common error. They don't shoot you at dawn for not fully understanding the GPL. But at the same time, it's good to know that the problems people think they see in the GPL generally are the result of not understanding it, not from any weakness in the GPL itself." (link supra) Today the phrase "The GPL is a License, Not a Contract" returns over 14,000 hits in a search using Google and is gospel truth to Free Software advocates worldwide. There is just one minor problem with her legal research -- it's utter legal gibberish. For the past 82 years, since the 1927 Supreme Court decision in De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, no federal court at either the circuit or district level has ever held that a copyright license is anything any other than a contract interpreted under the state common law of contracts. In a recent Groklaw post criticizing Alexander Terekhov she asserted: "He also claimed that Eben Moglen would never dare to go to court against Cisco/Linksys/Broadcom or whoever, because he'd lose since his GPL 'game' was all about bluff. That was in 2004. As you know, the Software Freedom Law Center has since gone to court successfully regarding the GPL multiple times, so be aware that his "legal" views are not accurate, in my view." http://www.groklaw.net/article.php?story=2009081716312060 The Software Freedom Law Center has, as a propaganda ploy, recently gone to court seven times and promptly voluntarily dismissed each suit before a federal judge could ever read a single sentence from one of their complaints. Now that's snatching "victory" from the jaws of defeat. FACT: No claim for any relief requested by an S.F.L.C. plaintiff has ever been granted by a federal court. Why wouldn't the S.F.L.C. immediately dismiss their frivolous suits? Can you imagine the look on a district judge's face when he realizes the plaintiffs are claiming "The GPL is a License, Not a Contract"? If P.J. had listened to Maureen O'Gara and Daniel Wallace in 2004 instead of making up her own delusional law, she wouldn't appear to be such an embarrassing nut-job today. (P.J.'s probably a Birther, so look out Barack) Sincerely, Rjack -- "Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of Appeals for the Federal Circuit 1995) -- -- "Although the United States Copyright Act, 17 U.S.C. 101- 1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals for the Seventh Circuit 2006) -- _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
