On Jan 8, 2008 8:07 PM, Richard Stallman <[EMAIL PROTECTED]> wrote: > This may be *your* "usual interpretation of the revised BSD license" > > Eben Moglen says that it is nearly universal among lawyers. > As this is a legal issue, I have confidence in him. >
Yeah, yeah. You have confidence in Eben Moglen[1]. But let's examine for example http://www.gnu.org/philosophy/enforcing-gpl.html "Licenses are not contracts" says self-proclaimed "world's leading experts on copyright law as applied to software" Eben Moglen about the GPL. Now, apart from governmental permits (not contracts indeed) licenses like driver licenses, fishing licenses from local municipalities, gun dealership, public lottery permits, etc. to do something regulated by government (may I just note that neither GNU.ORG nor FSF.OGR is a governmental entity) and in the context of "intellectual property"[2] licenses, consider (starting with United States Supreme Court): "Whether this [act] constitutes a gratuitous license, or one for a reasonable compensation, must, of course, depend upon the circumstances; but the relation between the parties thereafter in respect of any suit brought must be held to be contractual, and not an unlawful invasion of the rights of the owner." De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, (1927) "Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law.'" McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (Fed. Cir. 1995) "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. When the language is plain and unambiguous, a reviewing court must construe the contract as it stands. In construing the contract, terms are to be given their plain and ordinary meaning." (citations omitted). Kennedy v. Nat'l Juvenile Det. Ass'n, 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 F3d 749, (7th Cir. 2006) "However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive license is, in essence, a mere waiver of the right to sue the licensee for infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive license may be oral or by conduct and a such a license creates a waiver of the right to sue in copyright, but not the right to sue for breach of contract)." Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007) BTW, the last one is about Artistic License being a contract (just like any other copyright license). Heck, and as for the GPL itself: http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf "On behalf of the people JUDGMENT ... The GPL grants anyone who enters into such contract... contractual relationship between the authors and Defendant ... incorporated into the contract by virtue of the preamble of the GPL ... Plaintiff, or the licensors from whom Plaintiff derives his right, have not violated any contractual obligations themselves ... Defendant, who violated contractual obligations" http://www.groklaw.net/pdf/MySQLcounterclaim.pdf MySQL's counter-complaint asserting breach of GPL license contract ("COUNT VIII Breach of Contract (GPL License)") and asking for declaratory (court to declare GPL terminated) and injunctive (court to preliminary and permanently enjoin Progress/NuSphere from "copying, modifying, sublicensing, or distributing the MySQL(TM) Program") relief (plus damages, of course). IBM's SIXTH COUNTERCLAIM (Breach of the GNU General Public License) against SCO... "SCO accepted the terms of the GPL... IBM is entitled to a declaration that SCO's rights under the GPL terminated, an injunction prohibiting SCO from its continuing and threatened breaches of the GPL and an award of damages in an amount to be determined at trial" (Pretty much the same as MySQL's claim above), BTW. From IBM's memorandum: "SCO's GPL violations entitle IBM to at least nominal damages on the Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC 20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled" that nominal damages are recoverable upon breach of contract); Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) ("Nominal damages are always available in breach of contract action".). " Also worth noting (from IBM's brief regarding the GPL contract breach): "the Court need not reach the choice of law issue because Utah law and New York law are in accord on the issues that must be reached to address SCO's sole argument on this motion, namely, that SCO did not breach the GPL. Throughout this brief, IBM cites to both Utah law and New York law." Do you still have confidence in Eben Moglen? [1] http://dartreview.com/archives/2005/04/08/intellectual_property_is_so_last_ye ar.php (Intellectual Property Is So Last Year) [2] http://lysanderspooner.org/intellect/contents.htm (THE LAW OF INTELLECTUAL PROPERTY; OR AN ESSAY ON THE RIGHT OF AUTHORS AND INVENTORS TO A PERPETUAL PROPERTY IN THEIR IDEAS. VOL. I. BY LYSANDER SPOONER. BOSTON: PUBLISHED BY BELA MARSH, 15 FRANKLIN STREET. 1855.) See also http://www.charvolant.org/~doug/gpl/gpl.pdf (Why Not Use the GPL? Thoughts on Free and Open-Source Software) Hth. regards, alexander.
