Re: SFLC is SOL
RJack u...@example.net writes: The SFLC has finally bought itself a shit-load of trouble. Because defendents write up a defense? That's not really that remarkable. 13. Best Buy requests a jury trial on all issues triable of right by a jury. Juries don't interpret the law but decide on questions of fact finding. There is not much leeway for finding here as long as plaintiffs did not ask for punishment of willful violation, but for compliance. But Best Buy does not state being in compliance, but rather not being affected by BusyBox copyrights. PRAYER FOR RELIEF WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its favor against Plaintiffs/Counterclaimants as follows: 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits; 2. Declaring that Best Buy has not infringed the alleged copyrights in BusyBox; 3. Awarding Best Buy its costs, including reasonable attorneys’ fees, incurred in connection with this matter; and 4. Awarding such other relief as this Court deems just and equitable. . . . This means that the SFLC cannot file a vouluntary dismissal without the permission of Best Buy Inc. There is no such thing as filing an unvoluntary dismissal. And of course, once Best Buy agrees to settle, both parties will file a joint request for dismissal because of having agreed on settlement terms. You'll be hollering about voluntary dismissals on the side of the SFLC and foaming at your mouth. But that's the way this stuff works. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack wrote: The SFLC has finally bought itself a shit-load of trouble. Five of fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site. It's actually more than five in the meantime: 03/08/2010 62 ANSWER to Complaint with JURY DEMAND. Document filed by Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered: 03/08/2010) 03/08/2010 64 ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman, David) (Entered: 03/08/2010) 03/08/2010 66 ANSWER to Complaint with JURY DEMAND. Document filed by Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010) 03/08/2010 67 ANSWER to Complaint. Document filed by Robert Bosch LLC.(Roth, Judith) (Entered: 03/08/2010) 03/08/2010 70 ANSWER to Complaint. Document filed by JVC Americas Corporation.(Yohai, David) (Entered: 03/08/2010) 03/08/2010 73 ANSWER to Complaint. Document filed by Dobbs-Stanford Corporation.(Heinrich, Justin) (Entered: 03/08/2010) 03/08/2010 75 ANSWER to Complaint with JURY DEMAND. Document filed by Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010 76 ANSWER to Complaint with JURY DEMAND. Document filed by Astak Inc.. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010) 03/08/2010 77 ANSWER to Complaint with JURY DEMAND. Document filed by ZYXEL Communications Inc.. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010) 03/08/2010 78 ANSWER to Complaint with JURY DEMAND. Document filed by Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010) 03/08/2010 79 ANSWER to Complaint with JURY DEMAND. Document filed by Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010) regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
David Kastrup wrote: Alexander Terekhov terek...@web.de writes: David Kastrup wrote: [...] This means that the SFLC cannot file a vouluntary dismissal without the permission of Best Buy Inc. There is no such thing as filing an unvoluntary dismissal. Uh retard dak. http://en.wikipedia.org/wiki/Involuntary_dismissal Involuntary dismissal is the termination of a court case despite the plaintiff's objection. And just how (and why) would a plaintiff actually _file_ an involuntary dismissal? I never said there _was_ no such thing as an involuntary dismissal, but it certainly can't be _filed_ by a party. If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? Could it be that you actually know the GPL is preempted and thus GPL code is quasi-public domain due to promissory estoppel? Perhaps your feigned ignorance is just stubbornness (like Hyman Rosen)? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
David Kastrup wrote: Alexander Terekhov terek...@web.de writes: David Kastrup wrote: [...] This means that the SFLC cannot file a vouluntary dismissal without the permission of Best Buy Inc. There is no such thing as filing an unvoluntary dismissal. Uh retard dak. http://en.wikipedia.org/wiki/Involuntary_dismissal Involuntary dismissal is the termination of a court case despite the plaintiff's objection. And just how (and why) would a plaintiff actually _file_ an involuntary dismissal? I never said there _was_ no such thing as an involuntary dismissal, but it certainly can't be _filed_ by a party. Defendant is also a party, oh paragon of GNU intellegence dak. Such filing is called a motion for involuntary dismissal v. a motion for voluntary dismissal. Got it now, uh silly dak. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack u...@example.net writes: If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? They don't apply where there is no preemption and no promissory estoppel. Could it be that you actually know the GPL is preempted and thus GPL code is quasi-public domain due to promissory estoppel? If the GPL is invalid, there is no other license for copying and modification. It is nonsensical to at once claim it being invalid, then using promissory estoppel claims as an excuse to take its permissions without heeding the conditions under which they are given. You can't pull it out of your hat only when you need it and ignore it otherwise. Perhaps your feigned ignorance is just stubbornness (like Hyman Rosen)? There is no ignorance feigned. If repeating obvious statements to cranks purporting not to get them is stubbornness, I might be guilty of that. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
David Kastrup wrote: RJack u...@example.net writes: If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? They don't apply where there is no preemption and no promissory estoppel. Could it be that you actually know the GPL is preempted and thus GPL code is quasi-public domain due to promissory estoppel? If the GPL is invalid, there is no other license for copying and modification. It is nonsensical to at once claim it being invalid, then using promissory estoppel claims as an excuse to take its permissions without heeding the conditions under which they are given. You can't pull it out of your hat only when you need it and ignore it otherwise. Perhaps your feigned ignorance is just stubbornness (like Hyman Rosen)? There is no ignorance feigned. If repeating obvious statements to cranks purporting not to get them is stubbornness, I might be guilty of that. Ahhh... I tried to give you the benefit of doubt. So... it really is true ignorance and not feigned ignorance. Nothing to be particularly proud of is it DAK? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/9/2010 8:35 AM, RJack wrote: If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? Neither of those applies to the GPL. Preemption is irrelevant because GPL claims are filed with respect to infringement of the exclusive rights of authors as described by federal law. Promissory estoppel is irrelevant because the GPL clearly describes the conditions under which covered works may be copied and distributed. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alexander Terekhov terek...@web.de wrote in message news:4b9625a2.f8e31...@web.de... RJack wrote: The SFLC has finally bought itself a shit-load of trouble. Five of fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site. It's actually more than five in the meantime: 03/08/2010 62 ANSWER to Complaint with JURY DEMAND. Document filed by Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered: 03/08/2010) 03/08/2010 64 ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman, David) (Entered: 03/08/2010) 03/08/2010 66 ANSWER to Complaint with JURY DEMAND. Document filed by Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010) 03/08/2010 67 ANSWER to Complaint. Document filed by Robert Bosch LLC.(Roth, Judith) (Entered: 03/08/2010) 03/08/2010 70 ANSWER to Complaint. Document filed by JVC Americas Corporation.(Yohai, David) (Entered: 03/08/2010) 03/08/2010 73 ANSWER to Complaint. Document filed by Dobbs-Stanford Corporation.(Heinrich, Justin) (Entered: 03/08/2010) 03/08/2010 75 ANSWER to Complaint with JURY DEMAND. Document filed by Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010 76 ANSWER to Complaint with JURY DEMAND. Document filed by Astak Inc.. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010) 03/08/2010 77 ANSWER to Complaint with JURY DEMAND. Document filed by ZYXEL Communications Inc.. (Attachments: # 1 Certificate of Service)(Kirsch, Emily) (Entered: 03/08/2010) 03/08/2010 78 ANSWER to Complaint with JURY DEMAND. Document filed by Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010) 03/08/2010 79 ANSWER to Complaint with JURY DEMAND. Document filed by Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010) Any merits of the case aside, it would seem to me that Moglen, et al has bitten off a rather large chaw. The staff http://www.softwarefreedom.org/about/team/ at SFLC seem out numbered and woefully outgunned in this matter. Presumably a loss here, and subsequent assessment of the legal costs of the defendants, would put their paychecks in extreme jeopardy as well. That may be more than their nerves can stand, particularly in this down economy. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
amicus_curious a...@sti.net writes: Any merits of the case aside, it would seem to me that Moglen, et al has bitten off a rather large chaw. Fortunately, it is not the job of the court to put any merits of the case aside. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
In gnu.misc.discuss RJack u...@example.net wrote: If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? Could it be that you actually know the GPL is preempted and thus GPL code is quasi-public domain due to promissory estoppel? Perhaps your feigned ignorance is just stubbornness (like Hyman Rosen)? You know, RJack, if you actually believed what you spout on this list, you wouldn't be shouting so loudly the sun's going to come up tomorrow. If you actually believed it, you'd be quietly confident of the outcome, and await it with patience. As it is, you're clearly trying to persuade yourself. Best of luck with that! Sincerely, RJack :) -- Alan Mackenzie (Nuremberg, Germany). ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alan Mackenzie wrote: In gnu.misc.discuss RJack u...@example.net wrote: If you are so smart at interpreting the Federal Rules of Civil Procedure, why are you so dumb at grasping doctrines like preemption and promissory estoppel? Could it be that you actually know the GPL is preempted and thus GPL code is quasi-public domain due to promissory estoppel? Perhaps your feigned ignorance is just stubbornness (like Hyman Rosen)? You know, RJack, if you actually believed what you spout on this list, you wouldn't be shouting so loudly the sun's going to come up tomorrow. If you actually believed it, you'd be quietly confident of the outcome, and await it with patience. As it is, you're clearly trying to persuade yourself. Best of luck with that! Whining again Alan? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack wrote: PACER: SFLC just voluntarily dismissed GCI Technologies Corp. Has anyone seen this pattern before? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack wrote: RJack wrote: PACER: SFLC just voluntarily dismissed GCI Technologies Corp. Uh, where is the SFLC's fucking press release triumphing yet another GPL 'settlement victory'? In the meantime http://www.cortex-pro.com/hdc_3000.php?t=3 is still in breach. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alexander Terekhov terek...@web.de writes: RJack wrote: RJack wrote: PACER: SFLC just voluntarily dismissed GCI Technologies Corp. Uh, where is the SFLC's fucking press release triumphing yet another GPL 'settlement victory'? In the meantime http://www.cortex-pro.com/hdc_3000.php?t=3 is still in breach. It would be rather unusual for a settlement not to entail reasonable deadlines for enacting the settlement. There is no doubt you'll act hysterical in the mean time, but that is not really something that the involved parties can take into account when settling. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
David Kastrup wrote: Alexander Terekhov terek...@web.de writes: RJack wrote: RJack wrote: PACER: SFLC just voluntarily dismissed GCI Technologies Corp. Uh, where is the SFLC's fucking press release triumphing yet another GPL 'settlement victory'? In the meantime http://www.cortex-pro.com/hdc_3000.php?t=3 is still in breach. It would be rather unusual for a settlement not to entail reasonable deadlines for enacting the settlement. LOL. And how much time that would take, silly dak? regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alexander Terekhov terek...@web.de writes: David Kastrup wrote: Alexander Terekhov terek...@web.de writes: RJack wrote: RJack wrote: PACER: SFLC just voluntarily dismissed GCI Technologies Corp. Uh, where is the SFLC's fucking press release triumphing yet another GPL 'settlement victory'? In the meantime http://www.cortex-pro.com/hdc_3000.php?t=3 is still in breach. It would be rather unusual for a settlement not to entail reasonable deadlines for enacting the settlement. LOL. And how much time that would take, silly dak? See? You are already getting hysterical, as predicted. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/10/2010 11:35 AM, Alexander Terekhov wrote: In the meantime http://www.cortex-pro.com/hdc_3000.php?t=3 is still in breach. Not any more. On that page, we now have HDC-3000 Open Source Release http://www.cortex-pro.com/upload/march122010/hdc-3000.zip Note: This is not a required download. Built on a Linux platform to ensure high reliability and performance. Linux and related portions of this software are provided under the GNU Public Licence (GPL) and the Lesser GNU Public License (LGPL). GCI Technologies has made available the source code for those portions of the software in this source release tarfile. So easy. See? ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/15/2010 3:20 PM, Alexander Terekhov wrote: Did you check the completeness of source code No. I'm insufficiently motivated to go set up a How do you know that GCI Tech. is not in breach then you silly? regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/15/2010 3:20 PM, Alexander Terekhov wrote: Did you check the completeness of source code No. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/15/2010 4:02 PM, Alexander Terekhov wrote: How do you know that GCI Tech. is not in breach then Because they settled with the SFLC, demonstrated by the SFLC dismissing its case. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On Mar 9, 3:42 am, David Kastrup d...@gnu.org wrote: RJack u...@example.net writes: The SFLC has finally bought itself a shit-load of trouble. Because defendents write up a defense? That's not really that remarkable. Actually, the defendents are required by law to file a response. If they don't the lose in a default judgement. The response in the case is pretty much pro-forma. Until the facts are known, and all disclosures are made, and the judge make preliminary rulings as to how the law is to be interpreted, what facts will be admissable, and what further disclosures may be ordered, neither side wants to rush to a settlement. 13. Best Buy requests a jury trial on all issues triable of right by a jury. Juries don't interpret the law but decide on questions of fact finding. There is not much leeway for finding here as long as plaintiffs did not ask for punishment of willful violation, but for compliance. Again this is the de-facto response. This is the respondant's way of reserving their right to a jury trial, should there be no possibility of a settlement and should the judge rule that the charges are with full merit and that there has been wilful violation of the law. Even then, often, the jury will not decide the issues of fact or of law, but may end up only being asked to determine the amount of the settlement. But Best Buy does not state being in compliance, but rather not being affected by BusyBox copyrights. Actually, it does not claim noncompliance, it claims that his not violated the copyrights. Best Buy will probably make it's case, as to whether or not they felt they were in compliance during the disclosure process. It's up to the plaintiff to prove that Best Buy was not in compliance. In this case, the SFLC most prove that Best Buy violated the terms of the BusyBox license. Best Buy could respond by offering it's own disclosures showing how it did attempt to comply with the license, at which point, they may ask the judge for a preliminary ruling as to whether their efforts met the legal requirements of compliance. PRAYER FOR RELIEF WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its favor against Plaintiffs/Counterclaimants as follows: 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits; Again, this is a standard part of a response. It's pretty much boilerplate. If the plaintiff has no basis for the case, or at least cannot provide evidence that the copyright was violated, in this case, that the terms of the license were violated, then the pro-forma countersuit is their way of preventing frivolous lawsuits. If the lawsuit was in fact frivolous, for example, Best Buy actually did publish the source code on their web site, as required by the copyright license, and Best Buy provided this information prior to SFLC filing the lawsuit, then the judge would quite likely rule in favor of Best Buy. 2. Declaring that Best Buy has not infringed the alleged copyrights in BusyBox; This response, again boilerplate, doesn't state whether they acually copied code from BusyBox, or whether they did copy and also adhered to the terms of the BusyBox license. 3. Awarding Best Buy its costs, including reasonable attorneys’ fees, incurred in connection with this matter; and 4. Awarding such other relief as this Court deems just and equitable. This means that the SFLC cannot file a vouluntary dismissal without the permission of Best Buy Inc. It sets the stage for a settlement. The SFLC and Best Buy will provide disclosures to each other as ordered by the judge. If Best Buy can show that it was in compliance with the license, then it will be up to Best Buy to prove that SFLC had been told that they were in compliance, had proved they were in compliance, and that SFLC knowingly filed a frivolous lawsuit. Again, these standard boilerplate responses are designed to meet the requirements of the law, based on the legal requirements at this stage of the case. These responses prevent people from filing frivolous lawsuits which have no merit and/or are filed even after the respondent has notified the plaintiff that it had every intention of being in compliance, and that it was in compliance. There is no such thing as filing an unvoluntary dismissal. And of course, once Best Buy agrees to settle, both parties will file a joint request for dismissal because of having agreed on settlement terms. Both sides need to reach an agreement to settle. In many GPL lawsuits, the only requirement for the settlement, is to show that you have met, and will continue to meet, the disclosure requirements. However, before there is a settlement, both sides need to know what the other side knew. They have to prove that there the copyrighted code was copied, and they have to prove that the person or company making the copies had violated the terms of the copyright agreement. Finally, if they want damages, they have to prove that
Re: SFLC is SOL
Hyman Rosen wrote: On 3/15/2010 4:02 PM, Alexander Terekhov wrote: How do you know that GCI Tech. is not in breach then Because they settled with the SFLC, demonstrated by the SFLC dismissing its case. http://www.sciencedaily.com/releases/2009/10/091020161950.htm Hth, Hyman. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
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. 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. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/15/2010 6:03 PM, RJack wrote: 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. That seems unlikely since federal preemption of state copyright enforcement has nothing to do with the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/15/2010 6:03 PM, RJack wrote: 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. That seems unlikely since federal preemption of state copyright enforcement has nothing to do with the GPL. It's about http://escholarship.org/uc/item/31t5x09h (eScholarship: Copyright Preemption of Contracts) silly Hyman. See also footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer: (consider that over time, under bazaar model with long chain of derivation in derivative works and additions to collective works by different authors, GPL'd IP becomes practically locked within the GPL pool) - Contracts do not involve the same basic scope or impact as do property rights established directly by operation of common law or state statute. This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues, that case involved the claim that a contractual restriction on the use of an uncopyrighted database was preempted because the subject matter of the transaction was unprotectable under copyright law.90 The court correctly rejected this argument. It drew an explicit distinction between a property right (potentially preempted) and a contract right. A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.'91 This reflects the transactional base of a contract and draws an important, relatively explicit line for purposes of preemption claims. Enforcing a contract between two parties leaves the subject matter of the contract (whether copyrighted or not) entirely unencumbered by any contract issue as to others not party to the transaction. Property rights and contract rights are simply not equivalent.92 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. - In context of Like the Supreme Court in Wolens, we think it prudent to refrain from adopting a rule that anything [**25] with the label contract is necessarily outside the preemption clause: the variations and possibilities are too numerous to foresee. National Car Rental likewise recognizes the possibility that some applications of the law of contract could interfere with the attainment of national objectives and therefore come within the domain of ß 301(a). . . But whether a particular license is generous or restrictive, a simple twoparty contract is not equivalent to any of the exclusive rights within the general scope of copyright and therefore may be enforced. ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) To repeat from Nimmer: It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. To wit: http://www.technollama.co.uk/a-licence-or-a-contract As far as I can tell, Moglen declares that he has a problem with the global variability of contract law. He says in an interview with Kathy Bowrey (thanks to David Berry for the link): This is the very reason why I have resisted contractualisation completely because contract law is totally non uniform around the world. With all due respect to Prof. Moglen, it is not up to him to decide if contract law applies to a licence, it is up to the courts. I find a part of the interview very telling. Here Moglen says: So all that I do is bring an infringement action. It is the defendants responsibility to prove license and the only credible license for the defendant to plead is my license, because code is not otherwise available except under that license. That is a dangerous position! Exactly! = 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. = regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU
Re: SFLC is SOL
On 3/16/2010 6:58 AM, Alexander Terekhov wrote: Hyman Rosen wrote: federal preemption of state copyright enforcement has nothing to do with the GPL. It's about http://escholarship.org/uc/item/31t5x09h (eScholarship: Copyright Preemption of Contracts) http://escholarship.org/uc/item/31t5x09h Courts now routinely reject the position that shrinkwrap and other licenses should be held invalid as a matter of contract law. Copyright scholars next turned to preemption doctrine, arguing that the Copyright Act should preempt contractual licenses that alter the Act's delicate balance of rights between owners and users. Here, too, courts have been unreceptive. ... Preemption analysis focuses on conflicts between federal law and state-imposed obligations, whereas contracts reflect private ordering. Moreover, the Copyright Act expressly allows contracts for certain purposes. Indeed, the efficacy of the Act as a whole depends on the ability of copyright owners to contract with others to make the most of their copyrights. As usual, the sources you cite contradict your thesis. Preemption is entirely irrelevant to the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [... http://escholarship.org/uc/item/31t5x09h ...] As usual, the sources you cite contradict your thesis. Preemption is entirely irrelevant to the GPL. Read a bit more than a couple of introductory paragraphs, silly Hyman. Courts simply attempt to apply to contract claims the same two-prong preemption test that they apply to non-contract state law claims. Courts have little or no difficulty applying the subject matter requirement to contract claims in the same case-by-case manner that they apply it to other state law claims. Courts have a great deal of difficulty, however, in applying the equivalence requirement in this way. There are three doctrinal approaches to determining whether a contract claim is equivalent to a copyright claim and therefore preempted. The first approach holds that a contract right is simply not equivalent to a copyright because it reflects private ordering and applies only to those in privity. Put another way, the mutual promise required to make a contract is itself an extra element that defeats preemption.62 This categorical approach to contract preemption cases comes, in large part, from Judge Easterbrooks decision in ProCD v. Zeidenberg.63 See also footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer: (consider that over time, under bazaar model with long chain of derivation in derivative works and additions to collective works by different authors, GPL'd IP becomes practically locked within the GPL pool) - Contracts do not involve the same basic scope or impact as do property rights established directly by operation of common law or state statute. This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues, that case involved the claim that a contractual restriction on the use of an uncopyrighted database was preempted because the subject matter of the transaction was unprotectable under copyright law.90 The court correctly rejected this argument. It drew an explicit distinction between a property right (potentially preempted) and a contract right. A copyright is a right against the world. Contracts, by contrast, generally affect only their parties; strangers may do as they please, so contracts do not create 'exclusive rights.'91 This reflects the transactional base of a contract and draws an important, relatively explicit line for purposes of preemption claims. Enforcing a contract between two parties leaves the subject matter of the contract (whether copyrighted or not) entirely unencumbered by any contract issue as to others not party to the transaction. Property rights and contract rights are simply not equivalent.92 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. - In context of Like the Supreme Court in Wolens, we think it prudent to refrain from adopting a rule that anything [**25] with the label contract is necessarily outside the preemption clause: the variations and possibilities are too numerous to foresee. National Car Rental likewise recognizes the possibility that some applications of the law of contract could interfere with the attainment of national objectives and therefore come within the domain of ß 301(a). . . But whether a particular license is generous or restrictive, a simple twoparty contract is not equivalent to any of the exclusive rights within the general scope of copyright and therefore may be enforced. ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) To repeat from Nimmer: It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. To wit: http://www.technollama.co.uk/a-licence-or-a-contract As far as I can tell, Moglen declares that he has a problem with the global variability of contract law. He says in an interview with Kathy Bowrey (thanks to David Berry for the link): This is the very reason why I have resisted contractualisation completely because contract law is totally non uniform around the world. With all due respect to Prof. Moglen, it is not up to him to decide if contract law applies to a licence, it is up to the courts. I find a part of the interview very telling. Here Moglen says: So all that I do is bring an infringement action. It is the defendants responsibility to prove license and the only credible license for the defendant to plead is my license, because code is not otherwise available except under that license. That is a dangerous position! Exactly! = 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
Re: SFLC is SOL
On 3/16/2010 10:05 AM, Alexander Terekhov wrote: Read a bit more than a couple of introductory paragraphs Nothing else you quote at all supports the notion that preemption has anything to do with the GPL. That's not surprising, since preemption has nothing to do with the GPL. That is a dangerous position! http://www.technollama.co.uk/a-licence-or-a-contract this argument would seem to suggest that any user of copyright works can be taken to court, and only then they can prove that they actually had a licence to use the work. Imagine the same paragraph above being said by Bill Gates and not by Eben Moglen, and you will get why this is such a dangerous position! This makes no sense. Assuming that user of works means someone who is copying and distributing them, then he is subject to infringement claims, to which he can use a license as a defense. This is equally true for rights held by Bill Gates or Eben Moglen and is entirely unsurprising. Why would this be considered dangerous? ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 10:05 AM, Alexander Terekhov wrote: Read a bit more than a couple of introductory paragraphs Nothing else you quote at all supports the notion that preemption has anything to do with the GPL. That's not surprising, since preemption has nothing to do with the GPL. GPLv2: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. Supreme Court: [I]t goes without saying that a contract cannot bind a non-party. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755. ROFL. ROFL. ROFL. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen hyro...@mail.com writes: On 3/16/2010 10:05 AM, Alexander Terekhov wrote: Read a bit more than a couple of introductory paragraphs Nothing else you quote at all supports the notion that preemption has anything to do with the GPL. That's not surprising, since preemption has nothing to do with the GPL. That is a dangerous position! http://www.technollama.co.uk/a-licence-or-a-contract this argument would seem to suggest that any user of copyright works can be taken to court, and only then they can prove that they actually had a licence to use the work. Imagine the same paragraph above being said by Bill Gates and not by Eben Moglen, and you will get why this is such a dangerous position! This makes no sense. Assuming that user of works means someone who is copying and distributing them, then he is subject to infringement claims, to which he can use a license as a defense. This is equally true for rights held by Bill Gates or Eben Moglen and is entirely unsurprising. Why would this be considered dangerous? In particular since anybody can be taken to court by anybody over whatever claim regardless how silly. What the court decides to do in consequence is a different matter. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack u...@example.net writes: Hyman Rosen wrote: On 3/16/2010 10:05 AM, Alexander Terekhov wrote: Read a bit more than a couple of introductory paragraphs Nothing else you quote at all supports the notion that preemption has anything to do with the GPL. That's not surprising, since preemption has nothing to do with the GPL. GPLv2: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. Supreme Court: [I]t goes without saying that a contract cannot bind a non-party. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755. But for those who want to have it said explicitly, the GPL spells it out: 9. Acceptance Not Required for Having Copies. You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so. The GPL is not a contract, in particular not a binding contract. It is a license. The recipient does not become licensee under the GPL automatically, but by accepting the terms for modification and redistribution. Once he does that, he is bound by them. It goes without saying that a contract or license cannot bind a non-party. Copyright, however, will bind non-parties to such an agreement. The recipient may, at his choice, become a party. If he wants to make use of the privileges granted to a party (namely a licensee), he needs to keep the conditions for becoming so. It is his choice. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 11:42 AM, RJack wrote: GPLv2: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. Supreme Court: [I]t goes without saying that a contract cannot bind a non-party. The GPL sets conditions for acquiring permission to copy and distribute a covered work. No non-parties are bound by the GPL unless they choose to acquire the permissions offered by the GPL. This is consistent with the quotes. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 11:42 AM, RJack wrote: GPLv2: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. Supreme Court: [I]t goes without saying that a contract cannot bind a non-party. The GPL sets conditions for acquiring permission to copy and distribute a covered work. No non-parties are bound by the GPL unless they choose to acquire the permissions offered by the GPL. This is consistent with the quotes. That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. ROFL. ROFL. ROFL. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:03 PM, RJack wrote: That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. If you choose not to avail yourself of the permissions granted by the GPL, then you are not bound by it. The Supreme Court says that a contract cannot bind a non-party. Both of these things are simultaneously true. You seem very confused. Certainly if you choose to accept the permissions of the GPL then you license the covered work at no charge to all third parties under the GPL, but that does not bind the third parties to anything unless they too choose to accept the permissions of the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack u...@example.net writes: Hyman Rosen wrote: On 3/16/2010 11:42 AM, RJack wrote: GPLv2: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. Supreme Court: [I]t goes without saying that a contract cannot bind a non-party. The GPL sets conditions for acquiring permission to copy and distribute a covered work. No non-parties are bound by the GPL unless they choose to acquire the permissions offered by the GPL. This is consistent with the quotes. That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. You are getting this backwards. The Supreme Court talks about non-parties here. If you, as recipient of software, don't make use of the GPL, you are a non-party. So the Supreme Court ruling concerning non-parties _does_ apply, and you are not bound by the terms of the GPL. If you, however, make use of the GPL, you become a party of the license agreement. In that case, the Supreme Court ruling concerning non-parties does no longer apply, and you _are_, as a party, bound by the license terms. The difference between a contract and a license is that with a license, you have the choice to be considered a party, or a non-party. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly asserted that the plaintiffs lack standing to bring the GPL claims. The GPL attempts to grant benefits to all third parties (hence the name Public License). Nowhere in the GPL is either actual party (i.e. non-third party) to the contract named as a beneficiary. Thus the plaintiffs have no Article III standing since they are not contract beneficiaries. A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 12:03 PM, RJack wrote: That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. If you choose not to avail yourself of the permissions granted by the GPL, then you are not bound by it. The Supreme Court says that a contract cannot bind a non-party. Both of these things are simultaneously true. You seem very confused. Certainly if you choose to accept the permissions of the GPL then you license the covered work at no charge to all third parties under the GPL, In defiance of the Supreme Court ruling. but that does not bind the third parties to anything unless they too choose to accept the permissions of the GPL. If they are not bound then you haven't *caused* all third parties to be licensed (which is impossible anyway) and thus have not satisfied the GPL requirements. Sincerely, RJack :) Only in the land of GNU can you have your cake and eat it too. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:27 PM, RJack wrote: A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack wrote: Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly asserted that the plaintiffs lack standing to bring the GPL claims. The GPL attempts to grant benefits to all third parties (hence the name Public License). Nowhere in the GPL is either actual party (i.e. non-third party) to the contract named as a beneficiary. Thus the plaintiffs have no Article III standing since they are not contract beneficiaries. A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly asserted that the plaintiffs lack standing to bring the GPL claims. The GPL attempts to grant benefits to all third parties (hence the name Public License). Nowhere in the GPL is either actual party (i.e. non-third party) to the contract named as a benificiary. Thus the plaintiffs have no Article III standing since they are not conract beneficiaries. A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:40 PM, RJack wrote: If you choose not to avail yourself of the permissions granted by the GPL, then you are not bound by it. The Supreme Court says that a contract cannot bind a non-party. Both of these things are simultaneously true. You seem very confused. Certainly if you choose to accept the permissions of the GPL then you license the covered work at no charge to all third parties under the GPL, In defiance of the Supreme Court ruling. No, in accordance with the Supreme Court ruling. If you choose to accept the permissions offered by the GPL, then you become a party to it, and must obey its conditions. but that does not bind the third parties to anything unless they too choose to accept the permissions of the GPL. If they are not bound then you haven't *caused* all third parties to be licensed (which is impossible anyway) and thus have not satisfied the GPL requirements. You have, by copying and distributing the covered work along with the GPL, which specifies that you are granting this license to all third parties. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 12:03 PM, RJack wrote: That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. If you choose not to avail yourself of the permissions granted by the GPL, then you are not bound by it. The Supreme Court says Uh retard Hyman. To quote IBM: The ownership interests contributors to software licensed under the GPL might have in their modifications are seriously limited, given that any distribution of those modifications must be done under the terms of the GPL. Yes silly Hyman, Enforcing a contract between two parties leaves the subject matter of the contract (whether copyrighted or not) entirely unencumbered by any contract issue as to others not party to the transaction. Property rights and contract rights are simply not equivalent.92 But 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. - In context of Like the Supreme Court in Wolens, we think it prudent to refrain from adopting a rule that anything [**25] with the label contract is necessarily outside the preemption clause: the variations and possibilities are too numerous to foresee. National Car Rental likewise recognizes the possibility that some applications of the law of contract could interfere with the attainment of national objectives and therefore come within the domain of ß 301(a). . . But whether a particular license is generous or restrictive, a simple twoparty contract is not equivalent to any of the exclusive rights within the general scope of copyright and therefore may be enforced. ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) To repeat from Nimmer: It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:46 PM, RJack wrote: Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly asserted that the plaintiffs lack standing to bring the GPL claims. No, they are incorrect in their claim. The GPL attempts to grant benefits to all third parties (hence the name Public License). Nowhere in the GPL is either actual party (i.e. non-third party) to the contract named as a benificiary. Thus the plaintiffs have no Article III standing since they are not conract beneficiaries. This argument is backwards. The plaintiffs are not beneficiaries of the GPL, they are copyright holders of the covered work. A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 12:27 PM, RJack wrote: A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909 (Fed.Cir.1984), this court said: Accordingly, we deem it appropriate here to decide non-patent matters in the light of the problems faced by the district court from which each count originated, including the law there applicable. In this manner, we desire to avoid exacerbating the problem of intercircuit conflicts in non-patent areas. A district court judge should not be expected to look over his shoulder to the law in this circuit, save as to those claims over which our subject matter jurisdiction is exclusive. [Footnote omitted.] The freedom of the district courts to follow the guidance of their particular circuits in all but the substantive law fields assigned exclusively to this court is recognized in the foregoing opinions and in this case.; ATARI, INC., v. JS A GROUP, INC., 747 F.2d 1422, 223 USPQ 1074 (Fed. Cir. 1984) (en banc). Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 11:51 AM, Alexander Terekhov wrote: To quote IBM: The ownership interests contributors to software licensed under the GPL might have in their modifications are seriously limited, given that any distribution of those modifications must be done under the terms of the GPL. http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. Yes. Preemption would apply when state law attempted to restrict what is otherwise permitted in terms similar to copyright. But the GPL does not restrict any behavior permitted by unadorned copyright law, and therefore preemption is irrelevant to the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack u...@example.net writes: David Kastrup wrote: RJack u...@example.net writes: That's a really brilliant tautology. If I never use the GPL then the Supreme Court ruling doesn't apply! Clever. Really clever. You are getting this backwards. The Supreme Court talks about non-parties here. If you, as recipient of software, don't make use of the GPL, you are a non-party. So the Supreme Court ruling concerning non-parties _does_ apply, and you are not bound by the terms of the GPL. If you, however, make use of the GPL, you become a party of the license agreement. Who am I supposed to believe? You or my lyin' eyes? ROFL. I think that the lying happens later in the processing chain. Anyway, if you have access to a brain, I recommend that you switch it on. That way, you avoid the need to believe anybody else. Sincerely, Unlikely. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen hyro...@mail.com writes: On 3/16/2010 12:46 PM, RJack wrote: Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly asserted that the plaintiffs lack standing to bring the GPL claims. No, they are incorrect in their claim. Fortunately, we can just wait for the results of the case. If the plaintiff lack standing, there will be no reason for the defendants to make the respective sources available under the GPL. Nor will there be any reason for them to merely pretend doing so, as some of our more desperate trolls claim to consider likely. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 11:51 AM, Alexander Terekhov wrote: To quote IBM: The ownership interests contributors to software licensed under the GPL might have in their modifications are seriously limited, given that any distribution of those modifications must be done under the terms of the GPL. http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. Yes. Preemption would apply when state law attempted to restrict what is otherwise permitted in terms similar to copyright. But the GPL does not restrict any behavior permitted by unadorned copyright law, and therefore preemption is irrelevant to the GPL. Even the distribution of derivative works? Really? Hop on over to your copy of the Copyright Act and show us. Who am I supposed to believe? You or my lyin' eyes? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 1:00 PM, RJack wrote: Even the distribution of derivative works? Really? Hop on over to your copy of the Copyright Act and show us. Who am I supposed to believe? You or my lyin' eyes? 17 USC 106, of course. http://www.law.cornell.edu/uscode/17/usc_sec_17_0106000-.html (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; Copyright in a derivative work is held by both the original author and by the author of the derivative work, and therefore distribution of a derivative work is the exclusive right of both of the authors of the work. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [...] Copyright in a derivative work is held by both the original author and by the author of the derivative work, and therefore Read 17 USC 103, retard Hyman. And think of derivative works based on public domain material. The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Hth. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:28 PM, Alexander Terekhov wrote: Hyman Rosen wrote: Copyright in a derivative work is held by both the original author and by the author of the derivative work, and therefore Read 17 USC 103. And think of derivative works based on public domain material. A derivative work based on public domain material would have only the author of the derivative work as the rights holder. What of it? The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Yes, of course. You quote this as if it has some significance to a point you are trying to make, but it does not. The author of a derivative work holds sole copyright in the derivative portion, and the original author holds sole copyright in the original portion. The derivative work as a whole contains both portions, and may only be copied and distributed with permission from both authors. For example, an author may have someone prepare a translation of his work into a different language, and the translator then owns copyright in the translation, but may not copy and distribute the translation without permission from the original author because the translated work contains the original elements created by the original author. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [...] For example, an author may have someone prepare a translation of his work into a different language, and the translator then owns copyright in the translation, but may not copy and distribute the translation without permission from the original author because the translated work contains the original elements created by the original author. To paraphrase IBM: The ownership interests translators to works licensed under the GPL might have in their translations are seriously limited, given that any distribution of those translations must be done under the terms of the GPL. So yes silly Hyman, Enforcing a contract between two parties leaves the subject matter of the contract (whether copyrighted or not) entirely unencumbered by any contract issue as to others not party to the transaction. Property rights and contract rights are simply not equivalent.92 But 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. In context of Like the Supreme Court in Wolens, we think it prudent to refrain from adopting a rule that anything [**25] with the label contract is necessarily outside the preemption clause: the variations and possibilities are too numerous to foresee. National Car Rental likewise recognizes the possibility that some applications of the law of contract could interfere with the attainment of national objectives and therefore come within the domain of ß 301(a). . . But whether a particular license is generous or restrictive, a simple twoparty contract is not equivalent to any of the exclusive rights within the general scope of copyright and therefore may be enforced. ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) To repeat from Nimmer: It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/16/2010 1:00 PM, RJack wrote: Even the distribution of derivative works? Really? Hop on over to your copy of the Copyright Act and show us. Who am I supposed to believe? You or my lyin' eyes? 17 USC 106, of course. http://www.law.cornell.edu/uscode/17/usc_sec_17_0106000-.html (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; Copyright in a derivative work is held by both the original author and by the author of the derivative work, and therefore distribution of a derivative work is the exclusive right of both of the authors of the work. There exist two mutually exclusive copyrights in a derivative work (17 USC § 103). Nothing but a claim of *contract* will legally secure the two mutually exclusive permissions required to distribute a derivative work as a whole. (Assuming two authors). Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:45 PM, Alexander Terekhov wrote: The ownership interests translators to works licensed under the GPL might have in their translations are seriously limited, given that any distribution of those translations must be done under the terms of the GPL. Yes, choosing to create a work based on GPL-covered work limits how that work may be copied or distributed. That is a choice the author makes. The same choices apply to the use of any other work - the conditions placed upon those works by their rights holders must be obeyed if the work is to be used. 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. Yes. Preemption would apply when state law attempted to restrict what is otherwise permitted in terms similar to copyright. But the GPL does not restrict any behavior permitted by unadorned copyright law, and therefore preemption is irrelevant to the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 1:54 PM, RJack wrote: There exist two mutually exclusive copyrights in a derivative work (17 USC § 103). Nothing but a claim of *contract* will legally secure the two mutually exclusive permissions required to distribute a derivative work as a whole. (Assuming two authors). The two permissions are secured, for GPL-covered works, by both authors releasing their work under the GPL. No contract is needed, the license is sufficient. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen hyro...@mail.com writes: On 3/16/2010 12:45 PM, Alexander Terekhov wrote: The ownership interests translators to works licensed under the GPL might have in their translations are seriously limited, given that any distribution of those translations must be done under the terms of the GPL. Yes, choosing to create a work based on GPL-covered work limits how that work may be copied or distributed. That is a choice the author makes. The same choices apply to the use of any other work - the conditions placed upon those works by their rights holders must be obeyed if the work is to be used. Actually, copyright does grant rights to the legal purchaser of copyrighted media: copyrighting the media binds the copyright owner to the provisions of copyright. Shrinkwrap licenses and their ilk try to make the purchaser agree a priori not to exercise his rights. But if a copy of a work is acquired with permission of the author, short of any contractual restriction that the recipient explicitly signifies agreement with, the author has no say in the default provisions of copyright. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 12:45 PM, Alexander Terekhov wrote: The ownership interests translators to works licensed under the GPL might have in their translations are seriously limited, given that any distribution of those translations must be done under the terms of the GPL. Yes, choosing to create a work based on GPL-covered work limits how that work may be copied or distributed. That is a choice the author makes. The same choices apply to the use of any other work - the conditions placed upon those works by their rights holders must be obeyed if the work is to be used. 92. It can be argued that this might change if, in effect, no third party can avoid being bound by the contract terms in order to use the information. Yes. Preemption would apply when state law attempted to restrict what is otherwise permitted in terms similar to copyright. But the GPL does not restrict any behavior permitted by unadorned copyright law, and therefore preemption is irrelevant to the GPL. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [...] work be covered by the GPL doesn't change that. However, this license is useless without a matching license in the Re matching license to retarded gnutians: http://www.sciencedaily.com/releases/2009/10/091020161950.htm Hth, Hyman. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
In gnu.misc.discuss David Kastrup d...@gnu.org wrote: The complaint is not relevant for a settlement out of court anyway. The past misconduct can't be cured by distributing complaint source with non-corresponding newer binaries. Why would one want to distribute a writ with the newer binaries? ;-) -- Alan Mackenzie (Nuremberg, Germany). ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/22/2010 3:56 PM, RJack wrote: Just for once Hyman, try to read the Complaint. Andersen claims (falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he re4gistered with the Copyright Office. His claim to ownership of BusyBox, v.0.60.3 is the *only* thing that gives the court jurisdiction to hear infringement claims. As a registered copyright holder of v.0.60.3 he is also a copyright holder of all derivative works based on v.0.60.3. If a defendant argues that they are copying and distributing a later version, the plaintiff will simply register that one with the copyright office. Defendant will then likely not be liable for statutory infringement on that version, since it was not registered when the infringement took place, but they will be enjoined from continuing to copy and distribute it. And actually, that's likely to have a sensitive dependence on the judge, because some judges may decide that given the many derivative works created through the routine process of computer programming, having one version registered is enough. In the instant case Erik Andersen wasn't even the original author of BusyBox v.0.60.3. There is no need to be an original author to hold copyright in a work. He is the author of a derivative work of the original BusyBox. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 2:43 PM, Alexander Terekhov wrote: The unadorned copyright doesn't not put restrictions on terms and conditions of licensing of the new copyright in a derivative work (which is exclusive rights and which belongs to the author of derivative work) to all third parties thereby creating a right against the world governed under state law of contract akin to the GPL. Doesn't not? Anyway, you fail to understand copyright law, as usual. A derivative work contains the original work with copyright held by the original author and new work with copyright held by the deriving author, provided that the derivative work was created with permission from the original author. Since the work contains material with rights held by more than one author, it may be copied and distributed only by permission from both authors. The creator of a derivative work cannot copy and distribute without permission from the original author, by unadorned copyright law. The GPL thus grants extended permissions beyond what unadorned copyright law would permit. In the EU terms, that's article 81: Typical irrelevancy. Daniel Wallace already miserably failed with his antitrust and restraint of trade arguments against the GPL, and EU courts will laugh such claims out just as US courts did. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/22/2010 1:08 PM, RJack wrote: Hyman Rosen wrote: On 3/22/2010 11:30 AM, RJack wrote: It is easily verified that neither link leads to the alleged infringed program source code. Of what use is a transparent lie? Transparent lie? TRANSPARENT LIE??? Show me a link to the source code for BusyBox, v.0.60.3 and I'll kiss your lyin' ass on the public courthouse square. Why do they need to provide the source code to v.0.60.3? They need to provide the source code to the version they copy and distribute. Do you have reason to believe that v.0.60.3 is the version they copy and distribute? The source code for BusyBox is included in http://www.cortex-pro.com/upload/march122010/hdc-3000.zip. Most of the stuff in BusyBox v.0.60.3 is derivative of BSD4.4-lite and is not original work by BusyBox authors anyway. Any modification in functionality is sufficient to create a derivative work. It does not have to satisfy any notion of originality. Anyone who wishes to copy and distribute a non-GPLed early version of BusyBox may do so under whatever license that version permits. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [...] Yes. Preemption would apply when state law attempted to restrict what is otherwise permitted in terms similar to copyright. But the GPL does not restrict any behavior permitted by unadorned copyright law, and therefore preemption is irrelevant to the GPL. The unadorned copyright doesn't not put restrictions on terms and conditions of licensing of the new copyright in a derivative work (which is exclusive rights and which belongs to the author of derivative work) to all third parties thereby creating a right against the world governed under state law of contract akin to the GPL. In the EU terms, that's article 81: The following shall be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions To wit: http://www.gnu.org/gnu/manifesto.html GNU will remove operating system software from the realm of competition. Go to doctor, Hyman. regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/16/2010 4:39 PM, Alexander Terekhov wrote: The unadorned copyright doesn't, (does) not put restrictions on terms and conditions of licensing of the new copyright in a derivative work (which is exclusive right and which belongs to the author of derivative work) to all third parties thereby creating a right against the world governed under state law of contract akin to the GPL. The author of a derivative work may license his copyright to anyone he wishes in any way he wishes, and having the work be covered by the GPL doesn't change that. However, this license is useless without a matching license in the original, because copying and distributing the derivative work requires permission from the original rights holder too. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
David Kastrup wrote: RJack u...@example.net writes: Just for once Hyman, try to read the Complaint. Andersen claims (falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he re4gistered with the Copyright Office. His claim to ownership of BusyBox, v.0.60.3 is the *only* thing that gives the court jurisdiction to hear infringement claims. You can't register Donald Duck with the Copyright Office and then claim infringement over Daffy Duck. The complaint is not relevant for a settlement out of court anyway. The past misconduct can't be cured by distributing complaint source with non-corresponding newer binaries. You're probably best know in this group as the guy who likes to Mooove the goalposts -- keep trying Hyman. Just keep trying. The goalpost is compliance with the GPL when distributing software. As always. In the instant case Erik Andersen wasn't even the original author of BusyBox v.0.60.3. Why then would defendant settle and publish? How would I know DAK? Maybe they're as dumb as Erik Andersen. You're as free to speculate about their motive as I am. Sincerely, RJack :} ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Just as I predicted, a familiar pattern is emerging in the Best Buy et. al. charade. The SFLC has stipulated extensions of time in Best Buy and Western Digital discovery schedules so that overseas licensors may be further investigated. This is the same pattern as Verizon (who also told them to kiss their ass) where the SFLC will grant voluntary dismissals to further court action with the named plaintiffs and then trumpet a face saving claim of settlement victory over some entity never even named in the lawsuit. The SFLC will *never* voluntarily allow a federal judge to review the GPL on the merits. They will *always* voluntarily dismiss their cases and then claim that Captain Moglen scared them out of the water. And so the propaganda machine peddles onward. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: [...] to continue, and we indeed already have compliance from one of the defendants in the recent filings. Wow, you already have compliance one of the defendants? Sez who? LMAO, silly Hyman! regards, alexander. P.S. I'm insufficiently motivated to go set up a GNU/Linux system so that I can do the builds. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/22/2010 11:30 AM, RJack wrote: It is easily verified that neither link leads to the alleged infringed program source code. Of what use is a transparent lie? Transparent lie? TRANSPARENT LIE??? Show me a link to the source code for BusyBox, v.0.60.3 and I'll kiss your lyin' ass on the public courthouse square. The source code for BusyBox is included in http://www.cortex-pro.com/upload/march122010/hdc-3000.zip. Most of the stuff in BusyBox v.0.60.3 is derivative of BSD4.4-lite and is not original work by BusyBox authors anyway. ROFL. LMAO. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alexander Terekhov wrote: Hyman Rosen wrote: [...] to continue, and we indeed already have compliance from one of the defendants in the recent filings. Wow, you already have compliance one of the defendants? Sez who? LMAO, silly Hyman! The SFLC retreat into total defeat is easily verified on the PACER court documents for SDNY. The plaintiffs can verify absolutely *nothing* about their vacuous propaganda claims of compliance. The plaintiffs claimed infringement of: 31. Mr. Andersen is, and at all relevant times has been, a copyright owner under United States copyright law in the FOSS software program known as BusyBox. See, e.g., “BusyBox, v.0.60.3.”, Copyright Reg. No. TX0006869051 (10/2/2008). *** BusyBox, v.0.60.3. Type of Work: Computer File Registration Number / Date: TX0006869051 / 2008-10-02 Application Title: BusyBox, v.0.60.3. Title: BusyBox, v.0.60.3. Description:Print material. Copyright Claimant: Erik Andersen, 1971- . Address: 352 North 525 East, Springville, Utah, 84663 Date of Creation: 2002 Date of Publication:2002-04-27 Authorship on Application: Erik Andersen, 1971- ; Domicile: United States; Citizenship: United States. Authorship: New and revised computer source code by Erik Andersen. Pre-existing Material: Previous version of the program and computer program code from other sources. Basis of Claim: New and revised computer source code by Erik Andersen. Copyright Note: C.O. correspondence. The only link to the source code on the billion or so sites that Google indexes is the BusyBox server. I am so thrilled that that the plaintiffs are in compliance with their own demands concerning their program. Too bad the defendants have told Erik Anderson to kiss their royal asses. ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
RJack u...@example.net writes: Just for once Hyman, try to read the Complaint. Andersen claims (falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he re4gistered with the Copyright Office. His claim to ownership of BusyBox, v.0.60.3 is the *only* thing that gives the court jurisdiction to hear infringement claims. You can't register Donald Duck with the Copyright Office and then claim infringement over Daffy Duck. The complaint is not relevant for a settlement out of court anyway. The past misconduct can't be cured by distributing complaint source with non-corresponding newer binaries. You're probably best know in this group as the guy who likes to Mooove the goalposts -- keep trying Hyman. Just keep trying. The goalpost is compliance with the GPL when distributing software. As always. In the instant case Erik Andersen wasn't even the original author of BusyBox v.0.60.3. Why then would defendant settle and publish? -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/19/2010 2:14 PM, Alexander Terekhov wrote: Wow, you already have compliance one of the defendants? Sez who? The web page of the defendants, here: HDC-3000 Open Source Release http://www.cortex-pro.com/upload/march122010/hdc-3000.zip Note: This is not a required download. Built on a Linux platform to ensure high reliability and performance. Linux and related portions of this software are provided under the GNU Public Licence (GPL) and the Lesser GNU Public License (LGPL). GCI Technologies has made available the source code for those portions of the software in this source release tarfile. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 3/19/2010 4:15 PM, RJack wrote: The plaintiffs can verify absolutely *nothing* about their vacuous propaganda claims of compliance. Of course they can. Verification is as simple as going to the web page of the defendants and seeing that the GPLed sources are now being properly distributed: HDC-3000 Open Source Release http://www.cortex-pro.com/upload/march122010/hdc-3000.zip Note: This is not a required download. Built on a Linux platform to ensure high reliability and performance. Linux and related portions of this software are provided under the GNU Public Licence (GPL) and the Lesser GNU Public License (LGPL). GCI Technologies has made available the source code for those portions of the software in this source release tarfile. It is easily verified that neither link leads to the alleged infringed program source code. Phantom settlements. Phantom source code. Phantom copyright owners. Mucho phantom hand-waving! It's a miracle that the SFLC didn't accuse the defendants of establishing death panels to kill off Medicare recipients. ROFL. LMAO. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/19/2010 4:15 PM, RJack wrote: The plaintiffs can verify absolutely *nothing* about their vacuous propaganda claims of compliance. Of course they can. Verification is as simple as going to the web page of the defendants and seeing that the GPLed sources are now being properly distributed: HDC-3000 Open Source Release http://www.cortex-pro.com/upload/march122010/hdc-3000.zip Note: This is not a required download. Built on a Linux platform to ensure high reliability and performance. Linux and related portions of this software are provided under the GNU Public Licence (GPL) and the Lesser GNU Public License (LGPL). GCI Technologies has made available the source code for those portions of the software in this source release tarfile. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/22/2010 11:30 AM, RJack wrote: It is easily verified that neither link leads to the alleged infringed program source code. Of what use is a transparent lie? The source code for BusyBox is included in http://www.cortex-pro.com/upload/march122010/hdc-3000.zip. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 3/19/2010 2:38 PM, RJack wrote: This is the same pattern as Verizon (who also told them to kiss their ass) After the case against Verizon ended, Verizon made the GPL-ed sources properly available. Thus, a successful outcome for the SFLC. The SFLC will *never* voluntarily allow a federal judge to review the GPL on the merits. There is no need or possibility for court cases to continue once the parties have reached agreement. So far, in all cases filed by the SFLC, once the cases ended the defendants came into compliance with the GPL. I fully expect the same pattern to continue, and we indeed already have compliance from one of the defendants in the recent filings. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On Mar 15, 6:03 pm, RJack u...@example.net 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 ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Rex Ballard rex.ball...@gmail.com writes: On Mar 15, 6:03 pm, RJack u...@example.net 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. Answer : yes they are. And no amount of whining and freetardery will change that. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hadron hadronqu...@gmail.com wrote in message news:rs3c97-ep1@news.eternal-september.org... Rex Ballard rex.ball...@gmail.com writes: On Mar 15, 6:03 pm, RJack u...@example.net 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. Answer : yes they are. And no amount of whining and freetardery will change that. Things are not that simple, else, why have lawyers? If you, say, take a photograph of the Toledo skyline at nightfall and publish the image, you own the copyright to that image and no one can use it without your permission. But if someone else borrows your camera and goes to the same spot and takes an identical photograph, they can use their photo as they wish. Copyright essentially pertains to and expression, fixed in a media as the act reads. Now consider that the binary form of a software program is the image. Then the computer used to compile the software binary is, in effect, the camera and the source code is the directions on where to stand and where to point the camera. Is that source code protected as a unique expression, too? I don't think that question has been answered in court as yet. If you go back to the first principles and see where the copyright is to protect the artist's expression and reason that is mainly due to protecting the artist's income from his work, the problem gets even more cloudy when there is no financial benefit accruing to the artist in the open source world. No damage, no compensation in the contracts world, hence the insistence that the GPL is not a contract. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
amicus_curious a...@sti.net writes: Hadron hadronqu...@gmail.com wrote in message news:rs3c97-ep1@news.eternal-september.org... Answer : yes they are. And no amount of whining and freetardery will change that. Things are not that simple, else, why have lawyers? If you, say, take a photograph of the Toledo skyline at nightfall and publish the image, you own the copyright to that image and no one can use it without your permission. If you do that with the Paris skyline, however, you'll get sued by the people having registered copyright for the light arrangement of the Eiffel tower. I am not joking. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On Apr 12, 8:36 pm, amicus_curious a...@sti.net wrote: Hadron hadronqu...@gmail.com wrote in message news:rs3c97-ep1@news.eternal-september.org... Rex Ballard rex.ball...@gmail.com writes: On Mar 15, 6:03 pm, RJack u...@example.net 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. Answer : yes they are. And no amount of whining and freetardery will change that. Things are not that simple, else, why have lawyers? If you, say, take a photograph of the Toledo skyline at nightfall and publish the image, you own the copyright to that image and no one can use it without your permission. But if someone else borrows your camera and goes to the same spot and takes an identical photograph, they can use their photo as they wish. Copyright essentially pertains to and expression, fixed in a media as the act reads. Now consider that the binary form of a software program is the image. Then the computer used to compile the software binary is, in effect, the camera and the source code is the directions on where to stand and where to point the camera. Is that source code protected as a unique expression, too? I don't think that question has been answered in court as yet. Both the statute of 1976 and precedent has already established that the code compiled from source is also protected. The only time a compiler could alter the copyright is if the compiler generates or include copyrighted code from other sources. The Bison compiler is a good example. I argued with Richard Stallman that if proprietary code was compiled under Bison, then moving the proprietary code into GNU license would be stealing the code. Richard responded, reminding me that if the owner of the proprietary code did not want to publish his code under GPL, they should use another compiler such as YACC. Eventually, the problem was solved when the authors of YACC published a version of YACC under GPL which did not put the code generated by the program under GPL. Linux has consistently taken a very pragmatic approach to blending both GPL and proprietary software, using LGPL applications and shared libraries to isolate proprietary compiled code from public license code. If you go back to the first principles and see where the copyright is to protect the artist's expression and reason that is mainly due to protecting the artist's income from his work, Actually, according to the constitution, and the statute, the aim was to promote the free exchange of information and ideas. There is no requirement that an artist be compensated in cash. The artist or author is providing consideration in the form of the copyrighted work - and the contract is the license agreement, in which the copyright owner may stipulate the terms and conditions of use. The same work can be published under different licenses. For example, a digital video could be licensed for home use when it's sold in stores. It could be licensed for theater exhibition when it's loaned to theaters. It could be licensed for broadcast when a copy is loaned or given to a broadcaster. A bar has to purchase a different license for ESPN than a home viewer. Copyright law governs not only duplication of the media, but also performances, or play-backs. Technically, even a play-back is a copy because the content must be copied from the storage device to the memory and registers of the playback device. This is why it's illegal to interfere with software that records the performance history of a media player. The Digital Millinium Copyright act more clearly restricts alterations to play- back devices or duplication technology - making it illegal to remove information that helps track duplication and performance as well as detecting piracy. The DMCA also prevents users of media from creating software which encourages illegal copying - this is why DVD-CSS driver for Linux was blocked in the United States. This was why the copyright act of 1976 was passed. the problem gets even more cloudy when there is no financial benefit accruing to the artist in the open source world. Actually, the artist or author is the one who is providing the consideration. What he is selling is a specific set of license terms. Just because you buy a CD at Sam
Re: SFLC is SOL
On 4/12/2010 8:36 PM, amicus_curious wrote: Now consider that the binary form of a software program is the image. Then the computer used to compile the software binary is, in effect, the camera and the source code is the directions on where to stand and where to point the camera. Is that source code protected as a unique expression, too? I don't think that question has been answered in court as yet. Here's what the Copyright Office Practices manual says: http://ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp 321.03 Relationship between source code and object code. The Copyright Office considers source code and object code as two representations of the same computer program. For registration purposes, the claim is in the computer program rather than in any particular representation of the program. Thus separate registrations are not appropriate for the source code and object code representations of the same computer program. However, where a work in source code is registered in unpublished form, and the published version of the same work is submitted for registration in object code form, registration will be made. This is rather similar, perhaps not coincidentally, to the GPL's definition of source code as being the preferred form for making changes. In any case, object code produced by a mechanical translation of source code is the same work as the source code for copyright purposes (not counting other works which may be incorporated into the object code as part of the translation process). If you go back to the first principles and see where the copyright is to protect the artist's expression and reason that is mainly due to protecting the artist's income from his work, the problem gets even more cloudy when there is no financial benefit accruing to the artist in the open source world. No damage, no compensation in the contracts world, hence the insistence that the GPL is not a contract. http://www.cafc.uscourts.gov/opinions/08-1001.pdf In the JMRI decision, the CAFC said: Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Good morning Hyman! Hyman Rosen wrote: [...] hence the insistence that the GPL is not a contract. http://www.cafc.uscourts.gov/opinions/08-1001.pdf Under California contract law... http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936 --- This is not legal advice... As an attorney spending a great deal of time on software related IP licensing and litigation matters, I find the CAFC decision in the Jacobsen case to be troubling. While I am sympathetic to the court's apparent desire to validate the concept of open source licensing and its alternative forms of consideration, I do not believe that the court's ruling justifies a euphoric response by the open source community. First, the CAFC's decision is a clear repudiation of the bare license theory long espoused by Mr. Moglen and his followers. The CAFC's decision reflects the fact that open source licenses, like any other form of software licenses, are contracts. I agree with this aspect of the decision as it is well supported by precedent at all levels. Neither Mr. Moglen, nor any of his followers have cited legal precedent in support of the bare license theory. The CAFC's decision should serve as clear notice that the bare license theory is nothing more than Moglen's wishful thinking. The necessary implication of this finding by the court is that open source licenses must be interpreted in the context of applicable state law, and to an extent, the common law of the Federal Circuit in which the open source agreement is interpreted. (This is directly in conflict with the CAFC's willful failure to follow state law and Ninth Circuit precedent regarding the interpretation of restrictions as conditions precedent). Second, the CAFC's opinion creates a great deal of uncertainty for software licensing (whether proprietary or open source). Let's take the GPLv3 as an example. As most peoople are aware, there are a variety of disagreements over exactly what is required of a licensee to comply with various provisions of the GPL. Section 2 of the GPL appears to condition the rights granted under the license on the licensee's compliance with the conditions stated in the license. Under the CAFC's decision in Jacobsen, it stands to reason that a licensee that fails to fully satisfy the conditions stated in the GPLv3 would infringe the licensor's copyrights rather than merely breaching the license. Thus, even if the licensee unintentionally violated the terms of the GPLv3 because the meaning of the terms are not clear, the licensee would be liabile for infringement. Why does this matter? State courts, the federal circuit courts of appeal and the US Supreme Court have all uniformly and routinely interpreted license restrictions as covenants rather than conditions precedent. In other words, the courts presume that the restrictions are covenants rather than conditions precedent unless the agreement clearly defines the restrictions as conditions. the CAFC's decision wholly ignores this long held principle of law. Most licenses, open source or proprietary, contain provisions whose meanings are open to viable debate. In the past, parties to a software license have largely understood that a licensee that breaches a license agreement's terms is liable to the licensor for damages decided under contract law. Proprietary licenses typically include provisions which define or otherwise limit the scope of damages that may be recovered in the event of a breach. On the other hand, a party that is liable for infringement of a copyright is subject to injunctive relief and damages equal to the owner's actual damages (plus the infringer's profits not covered by the owner's actual damages) OR statutory damages of up to $150,000 per incidence of infringement. Any contractually agreed limitations on damages would be irrelevant in the infringement setting. The CAFC's Jacobsen decision unwittingly attempts to radically change the risks of licensing software. The CAFC states that any failure to comply with a license provision that the license even generally calls a condition is an infringement rather than a breach. Thus, any licensee that violates the conditions of a license, even if unintentional, is subject to infringement damages. If the CAFC's decision stands and is generally followed in the Circuits and state courts, (which it should not be), every license from this point forward will need to clearly state which, if any, restrictions are conditions precedent and which restrictions are merely covenants (all other restrictions). Moreover, the provisions that are conditions precedent will need to be defined with a high degree of care to minimize a licensee's risk of unintentionally infringing the copyrights as a result of miinterpreting the provisions. Another side note - many licesne agreement issues are brought in state courts. Section 301(a) of the Copyright Act, however, preempts any state court from
Re: SFLC is SOL
On 4/13/2010 9:20 AM, Alexander Terekhov wrote: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936 I can quote meaningless random papers too! http://www.sapnakumar.org/EnfGPL.pdf But no matter how one construes the GPL, the requirement of consideration is not met. Though the licensor’s restrictions in rights might benefit the licensor, the GPL does not state whether those restrictions would translate into consideration and if consideration would benefit the licensor or a third party. The lack of a meeting of minds makes the GPL contract theory fly in the face of the UCC, state common law, and common sense. This leads us back to Moglen’s now plausible assertion that the GPL is not a contract. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 4/12/2010 8:36 PM, amicus_curious wrote: Now consider that the binary form of a software program is the image. Then the computer used to compile the software binary is, in effect, the camera and the source code is the directions on where to stand and where to point the camera. Is that source code protected as a unique expression, too? I don't think that question has been answered in court as yet. [...] If you go back to the first principles and see where the copyright is to protect the artist's expression and reason that is mainly due to protecting the artist's income from his work, the problem gets even more cloudy when there is no financial benefit accruing to the artist in the open source world. No damage, no compensation in the contracts world, hence the insistence that the GPL is not a contract. http://www.cafc.uscourts.gov/opinions/08-1001.pdf In the JMRI decision, the CAFC said: Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief. 1) The SFLC is being tried in a federal district in the Second Circuit not in the CAFC: In Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909 (Fed.Cir.1984), this court said: Accordingly, we deem it appropriate here to decide non-patent matters in the light of the problems faced by the district court from which each count originated, including the law there applicable. In this manner, we desire to avoid exacerbating the problem of intercircuit conflicts in non-patent areas. A district court judge should not be expected to look over his shoulder to the law in this circuit, save as to those claims over which our subject matter jurisdiction is exclusive. [Footnote omitted.] The freedom of the district courts to follow the guidance of their particular circuits in all but the substantive law fields assigned exclusively to this court is recognized in the foregoing opinions and in this case.; ATARI, INC., v. JS A GROUP, INC., 747 F.2d 1422, 223 USPQ 1074 (Fed. Cir. 1984) (en banc) The JMRI case would be useful as toilet paper (and nothing more) in the Second Circuit. As to damages provable, here's the law: In Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992), we held that, to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) Let's you and I review the Supreme Court's holding, Hyman. ... (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;... Which part of concrete and particularized and not conjectural or hypothetical is escaping your cognitive abilities Hyman? Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 4/13/2010 9:20 AM, Alexander Terekhov wrote: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936 dteme...@nvalaw.com is a real attorney spending a great deal of time on software related IP licensing and litigation matters. http://nvalaw.com/ I can quote meaningless random papers too! http://www.sapnakumar.org/EnfGPL.pdf But no matter how one construes the GPL, the requirement of consideration is not met. Though the licensors restrictions in rights might benefit the licensor, the GPL does not state whether those restrictions would translate into consideration and if consideration would benefit the licensor or a third party. The lack of a meeting of minds makes the GPL contract theory fly in the face of the UCC, state common law, and common sense. This leads us back to Moglens now plausible assertion that the GPL is not a contract. http://www.sapnakumar.org/ sapnakumar.org is just yet another crazy academic akin to Moglen and Lessig. The stuff from crazy academics akin to Moglen and Lessig such as sapnakumar.org is indeed mostly meaningless bullshit, I agree. regards, alexander. P.S. Every computer program in the world, BusyBox included, exceeds the originality standards required by copyright law. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 4/13/2010 10:01 AM, RJack wrote: 1) The SFLC is being tried in a federal district in the Second Circuit not in the CAFC: The JMRI case would be useful as toilet paper (and nothing more) in the Second Circuit. The reasoning of the CAFC is sound, and therefore other courts can be expected to reach the same conclusions. ... (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;... 17 USC 504 http://www4.law.cornell.edu/uscode/17/usc_sec_17_0504000-.html § 504. Remedies for infringement: Damages and profits (a) In General.— Except as otherwise provided by this title, an infringer of copyright is liable for either— (1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Alexander Terekhov terek...@web.de writes: Hyman Rosen wrote: On 4/13/2010 9:20 AM, Alexander Terekhov wrote: http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936 dteme...@nvalaw.com is a real attorney spending a great deal of time on software related IP licensing and litigation matters. Well, _you_ are spending a great deal of time on that, too, and look what kind of nonsense we get out of that. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 4/13/2010 10:05 AM, Alexander Terekhov wrote: dteme...@nvalaw.com is a real attorney spending a great deal of time on software related IP licensing and litigation matters. Real attorneys who spend a great deal of time on IP licensing and litigation are unlikely to have spent any of that time actually dealing with violations of open licenses, and are probably no more expert at it than the academeic writers. Possibly less so, since the typical software license is a simple two-party contract. Hyman you bandy about the term open license as if it is a special, exceptional category of copyright license -- it isn't. ALL copyright licenses WITHOUT exception are simply contracts to be interpreted under the States' common law of contracts: Normal rules of contract construction are generally applied in construing copyright agreements. Nimmer on Copyright sec. 10.08. Under Wisconsin law, contracts are to be construed as they are written. Amcast Indus. Corp. v. Affiliated FM Ins. Co., 584 N.W.2d 218, 226 (Wis. App. 1998). 187 F.3d 690 (7th Cir. 1999) 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). There is no *legal* definition of open license versus proprietary license those are simply terms made up by the software community. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 4/13/2010 10:25 AM, RJack wrote: No Article III standing http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=504invol=555 As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally protected interest. http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_0501000-.html The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. Only anti-GPL cranks (or lawyers raising every possible defense) believe that straightforward copyright infringement will not have standing. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 4/13/2010 10:25 AM, RJack wrote: No Article III standing http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=504invol=555 As the parties invoking federal jurisdiction, respondents bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally protected interest. http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_0501000-.html The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. Only anti-GPL cranks (or lawyers raising every possible defense) believe that straightforward copyright infringement will not have standing. Only kooks like you believe that third party beneficiary contracts like the GPL give rise to Article III standing to non-benefical parties. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
On 4/13/2010 10:37 AM, RJack wrote: Hyman you bandy about the term open license as if it is a special, exceptional category of copyright license -- it isn't. Open licenses are special, since they are offered unilaterally by licensors without communication or agreement with licensees. ALL copyright licenses WITHOUT exception are simply contracts to be interpreted under the States' common law of contracts: Rather, when it comes to understanding rights and obligations under a license, the issues involved are identical to contract law, so licenses are construed as contracts for purposes of analysis. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC is SOL
Hyman Rosen wrote: On 4/13/2010 10:37 AM, RJack wrote: Hyman you bandy about the term open license as if it is a special, exceptional category of copyright license -- it isn't. Open licenses are special, since they are offered unilaterally by licensors without communication or agreement with licensees. Uh retard Hyman. http://www.gnu.org/licenses/gpl.html by [blah-blah], you indicate your acceptance of this License http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance ... acceptance may be inferred from conduct regards, alexander. P.S. Every computer program in the world, BusyBox included, exceeds the originality standards required by copyright law. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' P.P.S. Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress. Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate' -- 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.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
