from:"Alexander Terekhov"

Breaking new.

Barnes  Thornburg LLP on the GPL (Wallace v IBM et al):

-
Although it is not clear how it is relevant to whether the per se or
rule of reason analysis would apply, Plaintiff also argues that the
GPL purports to defeat the requirements of contractual privity and
thus evade the prohibition under 17 U.S.C. 301 concerning the
contractual regulation of copyrights. (Response at 4.) Section 301
of 17 U.S.C., however, concerns the preemptive effect of the Copyright
Act with respect to other laws and does not prohibit contractual
regulation of copyrights. To the contrary, as is evident from the
ProCD case Plaintiff cites, copyrights may be licensed by a uniform
contract effective against all who choose to use it. (Response at 6)
(citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996).)
The court in ProCD held that a shrinkwrap software license, that
is, a license that accompanies software limiting its use, is an
effective contract under the UCC against anyone who receives the
terms of the license and uses the software. Id. at 1452. The court
also held that state enforcement of such contracts under the UCC
would not be preempted by the Copyright Act or 17 U.S.C. § 301. Id.
The GPL, like the shrinkwrap license in ProCD, is a license
applicable to anyone who receives its terms and chooses to use it,
and by using it, accepts the terms under which the software was
offered. Id.
-

My, this is such a fun. Kudos to Wallace.

regards,
alexander.

Re: GPL v3 Draft

Barnes  Thornburg LLP on price:

---
Plaintiff's argument that an agreement to license any derivative works
at no charge is somehow a minimum re-sale price is untenable given
that the provision does not set a price for licenses at all, but
rather provides that there shall be no price for licenses. (Response
at 10; GPL para. 2(b).) Furthermore, a minimum price agreement
requires that any price below that price would violate the agreement.
There is no indication that in the unlikely event a licensor wished to
license modifications to the GPL at a price below zero (i.e., an
effective negative price by paying the licensee to take the license),
such would in any way violate the GPL. To the extent the GPL is
analogous to any type of price restraint, it would be no more than a
maximum vertical restrain subject to the rule of reason.
---

He he.

regards,
alexander.

Re: GPL v3 Draft

On 2/22/06, olive [EMAIL PROTECTED] wrote:

[... Not a Contract ...]

 I do not see why you object to this theory.

Go ask Barnes  Thornburg LLP. [O]ne of the Midwest's largest law
firms says that

The GPL, like the shrinkwrap license in ProCD, is a license
applicable to anyone who receives its terms and chooses to use it, and
by using it, accepts the terms under which the software was offered.
Id..

(In ProCD the court then held the license valid and enforceable as a
contract.)

regards,
alexander.

P.S. Never mind that EULAs don't convey any rights under 17 USC 106
(subject to limitations under 17 USC 117 and etc.) at all.

Re: GPL v3 Draft

On 2/22/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 Barnes  Thornburg LLP on price:

 ---
 Plaintiff's argument that an agreement to license any derivative works
 at no charge is somehow a minimum re-sale price is untenable given
 that the provision does not set a price for licenses at all, but
 rather provides that there shall be no price for licenses. (Response
 at 10; GPL para. 2(b).) Furthermore, a minimum price agreement
 requires that any price below that price would violate the agreement.
 There is no indication that in the unlikely event a licensor wished to
 license modifications to the GPL at a price below zero (i.e., an
 effective negative price by paying the licensee to take the license),
 such would in any way violate the GPL. To the extent the GPL is
 analogous to any type of price restraint, it would be no more than a

Uhmm.

Wallace's argument was about collective works to begin with.

-
Alternative Vertical Analysis

In the alternative, if the GPL license is viewed simply as
distributing a collective work in a vertical agreement ...
-

Somehow it got translated by Barnes  Thornburg LLP to

Plaintiff's argument that an agreement to license any derivative works

Any ideas, all?

Oh, Ah, BTW... does anyone know where can I find a negatively priced
GPL'd stuff?

Half the profit for a link! Heck, 75 percent!! 90 if you insist!!!

regards,
alexander.

Re: GPL v3 Draft

Barnes  Thornburg LLP on conspiracy.

--
Finally, the Response confirms that there is no alleged conspiracy,
as the GPL is allegedly public by its nature with hundreds and
potentially an unlimited number of programmers using the program.
(Response at 3.) The allegations support no more than a unilateral
decision by each of the Defendants, and the hundreds of others,
to use the GPL for distribution of software. (Second Am. Compl. at
2.) The Second Amended Complaint must therefore be dismissed under
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted.
--

Well, well, well.

http://www.cobbles.com/simpp_archive/paramountdoc_1946equity.htm
(The U.S. Declares Hollywood Guilty of Antitrust Conspiracy)

http://www.cobbles.com/simpp_archive/paramountdoc_1948supreme.htm

-
The District Court found that the defendants in the licenses they
issued fixed minimum admission prices which the exhibitors agreed
to charge, whether the rental of the film was a flat amount or a
percentage of the receipts. It found that substantially uniform
minimum prices had been established in the licenses of all
defendans. Minimum prices were established in master agreements or
franchises which were made between various defendants as
distributors and various defendants as exhibitors and in joint
operating agreements made by the five majors with each other [334
U.S. 131 , 142]   and with independent theatre owners covering the
operation of certain theatres. 4 By these later contracts minimum
admission prices were often fixed for dozens of theatres owned by
a particular defendant in a given area of the United States.
Minimum prices were fixed in licenses of each of the five major
defendants. The other three defendants made the same requirement
in licenses granted to the exhibitor-defendants. We do not stop
to elaborate on these findings. They are adequately detailed by
the District Court in its opinion. See 66 F.Supp. 334-339.

The District Court found that two price-fixing conspiracies
existed-a horizontal one between all the defendants, a vertical
one between each distributor-defendant and its licensees. The
latter was based on express agreements and was plainly established.
The former was inferred from the pattern of price-fixing disclosed
in the record. We think there was adequate foundation for it too.
It is not necessary to find an express agreement in order to find
a conspiracy. It is enough that a concert of action is contemplated
and that the defendants conformed to the arrangement. Interstate
Circuit v. United States, 306 U.S. 208 , 226, 227, 474; United
States v. Masonite Corp., 316 U.S. 265, 275 , 1076. That was shown
here.
-

regards,
alexander.

Re: GPL v3 Draft

On 2/22/06, olive [EMAIL PROTECTED] wrote:
[...]
 The GPL give you *more* permissions than copyright law; so a
 contract is not needed because the forbidden things by the GPL
 are forbidden by copyright law anyway. If you break the GPL
 you just can get sued because you have distributed/modified
 softwares without the required permission.

Distribution of authorized (not pirated) copies is permitted under 17 USC 109.

Similarly, owners of authorized copies can modify software under 17 USC 117.

So distributed/modified (WITHOUT AUTHORITY OF THE COPYRIGHT OWNERS)
of publicly available GPL'd works is explicitly permitted by the
copyright law.

It doesn't require permission. Copyright doesn't contemplate copyleft.

regards,
alexander.

Re: GPL v3 Draft

Moglen's underling Fontana in action.

http://www.ciocentral.com/article/Questions+Still+Abound+over+GPL+3+/171577_1.aspx


On the DRM front, there is little the GPL can do to fix this, and
this is a matter that needs to be taken up by the legislature, Fontana
said.

But, that being said, the license also makes it difficult for people
to use the GPL to invoke DRM protections, and we want to make sure
that if they are going to invoke DRM restrictions that they can't use
our license to do that, he said.

Also, on the issue of derivative works, Fontana said the draft license
has not changed the language that defines what a derivative work is,
and I don't think that we can.

But Lawrence Rosen, a partner with Rosenlaw  Einschlag, said people
want to know whether, if they linked two pieces of work together, this
creates a derivative work. People do not know if that is the case
here, and the license is not entirely clear about the obligation to
release source code, and that uncertainty hurts potential adoption of
the GPL, he said.


Blogging-ly-yours.

regards,
alexander.

Re: GPL v3 Draft

Page 2 exhibit managed to escape. Bringing it back.

On 2/22/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 Moglen's underling Fontana in action.

 http://www.ciocentral.com/article/Questions+Still+Abound+over+GPL+3+/171577_1.aspx

 
 On the DRM front, there is little the GPL can do to fix this, and
 this is a matter that needs to be taken up by the legislature, Fontana
 said.

 But, that being said, the license also makes it difficult for people
 to use the GPL to invoke DRM protections, and we want to make sure
 that if they are going to invoke DRM restrictions that they can't use
 our license to do that, he said.

 Also, on the issue of derivative works, Fontana said the draft license
 has not changed the language that defines what a derivative work is,
 and I don't think that we can.

 But Lawrence Rosen, a partner with Rosenlaw  Einschlag, said people
 want to know whether, if they linked two pieces of work together, this
 creates a derivative work. People do not know if that is the case
 here, and the license is not entirely clear about the obligation to
 release source code, and that uncertainty hurts potential adoption of
 the GPL, he said.
 

---
Rosen said he is still trying to figure out what the wording of the
license actually means. You have to make sure that all the words fit
together, and right now, I'm nor sure they actually do, so it's useful
to have all these committees looking at it, he said.

Rosen also wants to know how and why this license differs from others,
and is looking forward to hearing from the FSF about that. He unsure
that all the language in the license has legal effect and what the
drafters are hoping the legal effect of the license will be.

Mike Milinkovich, the executive director of the Eclipse Foundation,
stressed that code licensed under the EPL (Eclipse Public License)
remain EPL code under any condition.
---

Still-blogging-ly-yours.

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

2006-02-20 Thread Alexander Terekhov

On 2/19/06, olive [EMAIL PROTECTED] wrote:
[...]
  http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf
 

 There is no judgement at all in this document which is resume only the
 arguments of D. Wallace. This court has dismissed D. Wallace on the
 basis of similar arguments in the documents I have pointed.

The basis for dismissal was the judgement that Wallace didn't allege
proper antitrust injury. It has really nothing to do with his
arguments on price-fixing, etc.

In his later filings, Wallace is just pressing the argument of
predatory pricing which is consistent with
http://www.rdantitrustlaw.info/shaky.pdf More generally, competitors
may never be heard to complain of artificially low prices unless they
are predatory, because it is only predatorily low prices that threaten
injury to competition.94 94) Id. at 339–40. The Court's discussion was
consistent with the Brunswick dictum on predatory pricing. See
Brunswick, 429 U.S. at 489 n.14 (where there is true predation (not
just uncomfortably aggressive price cutting), a competitor's lost
profits do count as antitrust injury, even though the predatory
practice temporarily benefits consumers).

 What I am looking for is an actual judgement; not only arguments that please 
 you.

Oh you should really look at the actual judgement. The judge already
ruled that Plaintiff's Third Amended Complaint States a Claim Upon
Which Relief can be Granted and Wallace expands on that finding of
vertical agreement in his Alternative Vertical Analysis.

 All judgements I know have been up to now in favour of the GPL.

That previous ENTRY GRANTING MOTION TO DISMISS THE COMPLAINT was not
quite in favour of the GPL.

 If you can show me the contrary, please do it,

Just read it. I mean bits like The GPL allows free access to software
programs, subject to some limitations. This does not mean that the GPL
necessarily aids competition as contemplated by the Sherman Act, as
FSF contends.

regards,
alexander.

Re: GPL v3 Draft

2006-02-16 Thread Alexander Terekhov

On 2/15/06, Steve Langasek [EMAIL PROTECTED] wrote:
 On Tue, Feb 14, 2006 at 10:26:10AM -0600, John Goerzen wrote:
  On Tue, Feb 14, 2006 at 04:47:32PM +0100, Alexander Terekhov wrote:
   On 2/14/06, John Goerzen [EMAIL PROTECTED] wrote:
On Tue, Feb 14, 2006 at 04:01:05PM +0100, Alexander Terekhov wrote:
 But we all know that the GPL is a license-not-a-contract, and so UCC
 and related case law simply doesn't apply.

Do we?  I thought that a license was a contract.

   Everyone who is neither blind nor an idiot knows for certain that the
   GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman and Eben Moglen
   have clarified that fact at least a hundred times.

  What purpose do you feel calling a person blind or an idiot serves?
  I don't think you are contributing anything to this discussion.

 He's not.  Would you please killfile him so that we can get on with life? :)

Oh c'mon, I try all my best.

http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html

-
This would not be a presentation about the GPL by me if emphasis was
not placed on what you see before you now. This license is

Not a Contract.

You are not required to accept this License in order to receive a copy
of the Program.

We have not argued now, nor will we, nor can anyone argue, who reads
the text of the language, that the receipt of the code is some
quid-pro-quo for the acceptance of some terms. If you are existing in
a legal system in which that wasn't what made it a contract, then
...go with God, but arguments based on the contractual exchange of the
code for promises of compliance have nothing to do with us. We give
permissions here and the enforcement weight of our license lies in the
fact that you have no permission to propagate, that is, you have no
permission to do what copyright law requires permission to do, but
through this license. That's our legal theory and we are sticking to
it.
-

Oh just love it. Moglen comedian. Brilliant one.

regards,
alexander.

Re: GPL v3 Draft

2006-02-16 Thread Alexander Terekhov

On 2/16/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 2/15/06, Steve Langasek [EMAIL PROTECTED] wrote:
  On Tue, Feb 14, 2006 at 10:26:10AM -0600, John Goerzen wrote:
   On Tue, Feb 14, 2006 at 04:47:32PM +0100, Alexander Terekhov wrote:
On 2/14/06, John Goerzen [EMAIL PROTECTED] wrote:
 On Tue, Feb 14, 2006 at 04:01:05PM +0100, Alexander Terekhov wrote:
  But we all know that the GPL is a license-not-a-contract, and so UCC
  and related case law simply doesn't apply.
 
 Do we?  I thought that a license was a contract.
 
Everyone who is neither blind nor an idiot knows for certain that the
GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman and Eben Moglen
have clarified that fact at least a hundred times.
 
   What purpose do you feel calling a person blind or an idiot serves?
   I don't think you are contributing anything to this discussion.
 
  He's not.  Would you please killfile him so that we can get on with life? :)

 Oh c'mon, I try all my best.

 http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html

 -
 This would not be a presentation about the GPL by me if emphasis was
 not placed on what you see before you now. This license is

 Not a Contract.

 You are not required to accept this License in order to receive a copy
 of the Program.

 We have not argued now, nor will we, nor can anyone argue, who reads
 the text of the language, that the receipt of the code is some
 quid-pro-quo for the acceptance of some terms. If you are existing in
 a legal system in which that wasn't what made it a contract, then
 ...go with God, but arguments based on the contractual exchange of the
 code for promises of compliance have nothing to do with us. We give
 permissions here and the enforcement weight of our license lies in the
 fact that you have no permission to propagate, that is, you have no
 permission to do what copyright law requires permission to do, but
 through this license. That's our legal theory and we are sticking to
 it.
 -
On another forum, I've posted a link to

http://emoglen.law.columbia.edu/research-agenda.html

as an example of Moglen's talent in bullshit rap:


Current research proceeds by facilitating
high-energy collisions between widely-dispersed
non-homogeneous randomly-motivated incremental
acts of individual creativity and large masses
of ill-gotten wealth.


I've also asked if anyone ever saw a computer program written by Eben


I am a historian and a computer programmer,


(nodody replied thus far).

Finally, I suggested that someone must tell Eben that he got a broken
link to Manifesto of the Communist Party.


See Moglen, The DotCommunist Manifesto[link] (2003). See and hear
Moglen, The DotCommunist Manifesto: How Culture Became Property and
What We're Going to Do About It[link] (University of North Carolina,
Chapel Hill, November 8, 2001). See also Crane Brinton, The Anatomy
of Revolution (New York, Prentice-Hall: 1952) (mult. repr.) (unfree);
Barrington Moore, Jr., Social Origins of Dictatorship and Democracy;
Lord and Peasant in the Making of the Modern World (Boston, Beacon
Press: 1966) (mult. repr.) (unfree); Karl Marx  Friedrich Engels,
Manifesto of the Communist Party[BROKEN link], (English ed. London,
1888) (Engels ed.) (mult. repr.) (mult. trans.).


daydone commented:


Now Alex let's not rag on Eben's qualities. It is well known that
Eben has impeccable credentials and legal judgement. His wisdom is
spread far and wide. Ever free software advocate in the United
States accepts what Eben says as gospel truth:

Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily
promised, but because she doesn't have any right to act at all
except as the license permits.

http://www.gnu.org/philosophy/enforcing-gpl.html

Even Groklaw's PJ knows this to be a fact:

The GPL is a License, Not a Contract, Which is Why the Sky Isn't
Falling

http://www.groklaw.net/article.php?story=20031214210634851

Only a small, irrelevent segment of the U.S. population doesn't
know this. . . the entire federal judiciary and the professional
lawyers hired to defend the F.S.F.

Perhaps with Eben's charm they'll come to see things his way. . .
I guess one can always hope.


regards,
alexander.

Re: GPL v3 Draft

2006-02-16 Thread Alexander Terekhov

I respectfully suggest to Debian and Software in the Public Interest,
Inc. to consider sponsoring a new glasses (let's not dilute $4 million
grant from OSDL) to crazy Eben, and let him take a brief look at ...

http://www.ifso.ie/documents/gplv3-launch-2006-01-16.html


Because the deterrent effect of denying the right to have and use and
distribute free software is not enough in and of itself to break most
patent aggression schemes. Where we have satisfied ourself that narrow
targeted patent retaliation may have true deterrent affect, we have
however incorporated it into the license as part of a general attempt to
do everything we can about the patent problem. Here we believe that one
narrow form of retaliation may actually have meaningful effect, so this
license gives unlimited permission to privately modify and run the
program provided that you do not bring suit for patent infringement
against anyone for making, using, or distributing, their works based on
the program. And as Richard has already told you, we believe the
operative effect of this clause would be to deny continued opportunity
to maintain privately modified versions on the part of any party who
seeks to use its patent claims to prevent similar or equivalent
modifications from being made by others. In this very narrow field we
think retaliation may actually deter aggression and we wish therefore to
include it.

Please note also the way in which the next paragraph makes use of our
copyright-culture-free notation scheme.

Propagation of covered works is permitted without limitation provided
it does not enable parties other than you to make or receive copies.
Propagation which does enable them to do so is permitted, as
'distribution', under the conditions of sections 4-6 below.

So let us, just for a moment, attend to the question of non-US statutory
copyright schemes under the new license.
-

... Sections 109 and 117 in the US statutory copyright scheme.

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/14/06, Nathanael Nerode [EMAIL PROTECTED] wrote:
 Alexander Terekhov [EMAIL PROTECTED]wrote:
  What is your educated opinion regarding the GPL being in trouble re
  http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html?
 First of all, the GPL clearly qualifies for the paragraph 3 exception, because
 is promoting technical or economic progress, while allowing consumers a fair
 share of the resulting benefit, etc.

Nice try. But you conveniently ignore the preconditions for that exception.

... which does not:

(a) impose on the undertakings concerned restrictions which are not
indispensable to the attainment of these objectives;

(b) afford such undertakings the possibility of eliminating
competition in respect of a substantial part of the products in
question. 

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
 Assuming you mean the FSF and/or GNU project, with whom are they
 entering onto agreement? Mmmmh?

I mean the GPL license.


 Also, please have a look at 81 § 3.

I did it.

Now you please take a look at

http://europa.eu.int/scadplus/leg/en/lvb/l26108.htm

-
Licensing agreements that restrict competition are prohibited by the
Community competition rules, and in particular Article 81 of the EC
Treaty. In most cases, however, these agreements also have positive
effects that outweigh their restrictive effects on competition. The
new provisions, which comprise a block exemption regulation and
guidelines, create an area of certainty for most licensing agreements.

[...]

These exemptions are granted on condition that the agreements do not
contain certain restrictions that have serious anti-competitive
effects.
-

And at

http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf

Now please tell me where and why Wallace goes wrong regarding serious
anti-competitive effects of the GPL license when used by a cartel of
competitors to pool and cross license predatory price fixed
intellectual property with the sole objective to eliminate free market
competition.

quote author=Stallman

In the GNU Project, discrimination against proprietary software is
not just a policy -- it's the principle and the purpose. Proprietary
software is fundamentally unjust and wrong, so when we have the
opportunity to place it at a disadvantage, that is a good thing.

/quote

TIA.

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/15/06, Yorick Cool [EMAIL PROTECTED] wrote:
 On Wed, Feb 15, 2006 at 11:28:22AM +0100, Alexander Terekhov wrote:
  On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote:
  [...]
   Assuming you mean the FSF and/or GNU project, with whom are they
   entering onto agreement? Mmmmh?
 
  I mean the GPL license.

 The GPL is a text, not an undertaking you can sue under art. 81. Which
 are the undertakings entering an unlawful agreement?

Next stupid question, please. Are you really educated in (some) law?

[...]
 The problem is that the GPL does not restrict competition, but rather
 enhances it. See, among others, the very good article Ville sent you.

Not entirely bad article, I agree. I just don't find his argumentation
convincing.


 See also the very simple fact that GNU/Linux is the first serious
 competitor to MS Windows to emerge in quite some time. This in and of
 itself demonstrates a heightening in competition, not a restriction.

Fighting competition by employing unlawful means is illegal. Wallace
didn't sue Apple and Darwin folk for foreclosing competition using
predatory price fixing of pooled and cross-licensed IP with the BSD.
Because the BSD doesn't price fix IP, I gather.

[...]
 The central fact is very simple: there is no price-fixing in the
 GPL.

Mikko Välimäki seems to disagree.

 The conflation between the copyright assets and the physical
 media is not, in this specific case, illegitimate. ...

Well, we'll see.

 Also, please stop CCing people. I am subscribed to the list and don't
 need your answers twice.

Please learn how to set up followup-to if it bothers you.

regards,
alexander.

Re: GPLv3 Drafting Process

On 2/14/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
[...]
 I suppose that fontana belongs to Moglen's underling at SFLC Richard 
 Fontana.

An interesting article about Eben Moglen:
http://www.law.com/jsp/article.jsp?id=1139911511108

Meet the DotCommunist

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/15/06, Ville Oksanen [EMAIL PROTECTED] wrote:
 clip

 Dr. Mikko Välimäki has a quite nice article on the topic:

 Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming
 in European Competition Law Review 3/2006
 http://www.valimaki.com/org/open_source_competition.pdf

day5done (some folks believe that he is Wallace) commented:

--
It appears Dr. Välimäki is as objective and unbiased in Europe as Eben
Moglen is in the United States. Ever see anyone author and sell a book
on open source licensing that didn't fervently believe in the
self-promoting assumptions surrounding open source software?

Order a print copy from Amazon or directly from us by filling in an
order form or emailing your name, address and the number of copies
wanted. We will process the order within 48 hrs and send the book with
payment instructions. Direct order is preferred for European
customers. The price of one copy is 39 EUR plus shipping charges (5
EUR for one copy to Europe).

http://pub.turre.com/

bio:
Mikko Välimäki, LL.M., Ph.D, is a research fellow at Swedish School
of Economics and Business Administration, Helsinki. He also teaches
technology and intellectual property law at the Helsinki University of
Technology. Mr. Välimäki has consulted especially software companies
and is the author of a book on open source licensing (available at
http://pub.turre.com/). Previously, Mr. Välimäki has been a visiting
scholar at the University of California, Berkeley. He is a co-founder
and former chairman of Electronic Frontier Finland.

The open source community and its proponents are one giant,
homogeneous, self-promoting hairball.
--

regards,
alexander.

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/15/06, Ville Oksanen [EMAIL PROTECTED] wrote:
 clip

 Dr. Mikko Välimäki has a quite nice article on the topic:

 Mikko Välimäki: Copyleft Licensing and EC Competition Law, forthcoming
 in European Competition Law Review 3/2006
 http://www.valimaki.com/org/open_source_competition.pdf

Thanks.

So far, there is no evidence that open source licensors would use
these obligations with malicious intention trying to turn all software
into open source.

Oh really?

http://groups.google.com/group/misc.int-property/msg/ea7b34ddbe4f175a

-
GPL Hollaaring
by: walter_oak_night01/27/06 03:04 pm

ICE on automatic aggregation of software copyrights
In fact, the GPL itself rejects any automatic aggregation of software
copyrights under the GPL simply because one program licensed under the
GPL is distributed together with another program that is not licensed
under the GPL: In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program) on
a volume of a storage or distribution medium does not bring the other
work under the scope of this License.

Linux kernel v. application
And as the copyright notice in the kernel sources says, user
applications are not subject to the GPL.

Supported by Hollaar:
With dynamically-linked libraries, the application program being
distributed is no longer a compilation that includes the library.
Because the library is not being distributed with the application
program, no permission is needed from the copyright owner of the library
for the distribution to users. Users must, of course, be authorized to
use the library, but if they are owners of a copy of the library, under
Section 117 they can make any adaptations of the library necessary to
use it with the application program.

FSF GPL FAQ
I'd like to modify GPL-covered programs and link them with the
portability libraries from Money Guzzler Inc. I cannot distribute the
source code for these libraries, so any user who wanted to change these
versions would have to obtained those libraries separately. Why doesn't
the GPL permit this? ….
http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc

FAQ as Fact
In 2002, a company named Global Technologies Ltd (now defunct) had
ported some 4.5M lines of GPL/BSD and other open source code to Windows
using ATT Uwin. They claimed less than 500 lines had to be changed and
all changes went back to original authors. The binaries were distributed
from their web site, but one day disappeared. My $50.00 check for a CD
distribution of the binaries and source, which indicated $25 gift to
FSF, was returned with a letter explaining Moglan threatened legal
action for violating the GPL because the code was linked with ATT
uwin's proprietary posix.dll that provided the POSIX interface on
windows.

Hollaar disagress
Some have claimed that an application program that needs a library for
its operation is a derivative work of that library. They take that
position because the application program is based on the library
because it was written to use the subroutines and other aspects of the
library. Such a position is misplaced
No other conclusion makes sense. If it were not the case, then any
program using the applications program interfaces (APIs) of an operating
system could be considered a derivative work of that operating system.
And, under the exclusive right to prepare derivative works, the
copyright owner of an operating system such as Microsoft Windows could
control who was allowed to write programs for that operating system.

What was that automatic rejection again?
-

-
Re: GPL Hollaaring FAQ or Fiction
by: walter_oak_night01/27/06 03:56 pm

Moglen got on the phone, resulting in both of the attorneys backing out
of publicly discussing a moot court argument involving a scenario
wherein a company used GPL software with a dynamically linked library,
and wherein an issue would have been whether the DLL was then subsumed
under the GPL.

Darn. Would have been interesting.

Beyond the Basics: Advanced Legal Topics in Open Source and
Collaborative Development in the Global Marketplace

When: Tuesday, March 21, 2006, 8:30 a.m. - 5:30 p.m.

http://www.law.washington.edu/lct/Events/FOSS/

Appellate Argument Moot: The Scope of Derivative Works under an Open
Source Software License

Respected FOSS experts will argue the proper scope of a derivative
work under U.S. copyright law, as applied to reuse of software source
code, before a distinguished panel of federal appeals court judges:

* Honorable William C. Bryson, U.S. Court of Appeals for the Federal
Circuit
* Honorable Haldane Robert Mayer, U.S. Court of Appeals for the Federal
Circuit
* Honorable Margaret McKeown, U.S. Court of Appeals for the Ninth
Circuit

This simulated appellate argument will permit some of the most difficult
issues facing practitioners to be debated fully and vigorously. The oral
argument will be preceded by an optional one-hour analysis of the legal
and

Re: EU antitrust is also cool

On 2/15/06, Frank Küster [EMAIL PROTECTED] wrote:
 olive [EMAIL PROTECTED] wrote:

  Alexander Terekhov wrote:
  On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote:
  [...]
 
 First off, hello.
  Hello Yorick.
  What is your educated opinion regarding the GPL being in trouble re
  http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html?
 
  Germany (which part of the EU) has declared the GPL legal. See
  http://lwn.net/Articles/73848/

 Germany hasn't done anything, at least nothing is described in this
 article.  A particular german court has spoken.

A particular German district court in Munich (the home of ifross' lead
attorney who is representing Welte and who's full of wild fantasies***
regarding the GPL being a special contract coupled with AGB based on
German concept of conditions subsequent) has just reiterated what
Welte's attorneys have thrown on poor court in the context of ex parte
action (not Hauptverfahren) to obtain a totally pointless preliminary
injunction against German call center of alleged violator from
Netherlands. With the defendant just saying that it doesn't make any
sense to sue us.

More serious and higher ranked folks have also spoken. Like Appellate
Judge (and etc.) Hoeren.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

regards,
alexander.

***) The gang at ifross is not happy with the GPLv3. The change in
termination provision totally breaks their silly legal construction.
http://www.heise.de/ct/06/04/046/

Re: EU antitrust is also cool (was: A new practical problem...)

On 2/15/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
  Are you really educated in (some) law?

 Check for yourself.
 http://www.fundp.ac.be/universite/personnes/page_view/01005395/
 Sorry it's in french (the website has just been revamped), but I guess
 you'll get the gist of it. A hint: logiciels libres means free software.

Cool. Let me guess: Master in Free Software Law?

[...]
 You forgot to read the end of his reasoning. After having accepted the
 idea that one might argue that the GPL might be seen as price-fixing
 because of the zero royalties, he states ...

http://groups.google.com/group/gnu.misc.discuss/msg/77958a74761c9565

regards,
alexander.

Re: EU antitrust is also cool

On 2/15/06, olive [EMAIL PROTECTED] wrote:
[...]
 It is reproached that a German court apply German law (?!?). A Germanian
 bring a lawsuit in Germany for infrigment of a license he have choosen.
 It is obvious that German laws will apply.

It's far from obvious unless the license specifies that it is governed
by German law. More later.

regards,
alexander.

Re: GPL v3 Draft

On 1/17/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/17/06, Don Armstrong [EMAIL PROTECTED] wrote:
 [...]
  Eben had a really humorous explanation, which I will attempt to
  paraphrase from my (impressively imperfect) memory:
 
 No lawyer knows exactly why we have been shouting at eachother for
 the past 50(?) years; but since everyone is shouting, everyone
 thought there must be some reason. I've decided to take take the
 initiative and return to mixed case, ending the endless shouting
 match.

 Yeah.

United States Court of Appeals, Fifth Circuit:

Uniform Commercial Code §  2-316(2), which requires that any
exclusion or modification of the implied warranty of merchantability
be conspicuous, and that any exclusion or modification of the implied
warranty of fitness for a particular purpose be made in a conspicuous
writing. A contract's warranty disclaimer satisfies the conspicuous
requirement when it is printed in all capital letters, when it appears
in a larger type than the terms around it, or when it is in a larger
and boldface type. Likewise, a disclaimer in boldface type, printed in
all capitals on the face of the warranty above the buyer's signature
meets the definition of conspicuousness. A disclaimer is not [*25] 
conspicuous, however, when it is printed in small print on the back of
the document, when it is the same size and typeface as the terms
around it, or when it is not in boldface or capital lettering.

But we all know that the GPL is a license-not-a-contract, and so UCC
and related case law simply doesn't apply.

regards,
alexander.

---
 LWN: So, if the kernel is covered solely by the GPL, you would see
  proprietary modules as an infringement?
 
  Eben: Yes. I think we would all accept that. I think that the
  degree of interpenetration between kernel modules and the remainder
  of the kernel is very great, I think it's clear that a kernel with
  some modules loaded is a a work and because any module that is
  dynamically loaded could be statically linked into the kernel, and
  because I'm sure that the mere method of linkage is not what
  determines what violates the GPL, I think it would be very clear
  analytically that non-GPL loadable kernel modules would violate the
  license if it's pure GPL.

 Analytically, the above would be true only if the first Nth
 hyperbolic cosines of the address registers are congruent (in a
 Hilbert Space) to the metric tenor of the hard drive space when
 mapped one to one onto (or is it into?) a finite but unbounded
 timelike manifold.

 Eben's got more bullshit rap than Snoop Dogg. 

  -- day5done.

Re: GPL v3 Draft

On 2/14/06, John Goerzen [EMAIL PROTECTED] wrote:
 On Tue, Feb 14, 2006 at 04:01:05PM +0100, Alexander Terekhov wrote:
  But we all know that the GPL is a license-not-a-contract, and so UCC
  and related case law simply doesn't apply.

 Do we?  I thought that a license was a contract.

Everyone who is neither blind nor an idiot knows for certain that the
GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman and Eben Moglen
have clarified that fact at least a hundred times.

regards,
alexander.

---
 [... ICE MILLER lawyers in Wallace v FSF: the contract controls ...]

 If Moglen doesn't fire them he has some serious explaining to do to
 thousands of people on why he misled programmers and companies on the
 legal nature of the GPL -- he is, after all, a Professor of Law and
 lead counsel for the FSF.

 This right to exclude implies an equally large power to license--that
 is, to grant permission to do what would otherwise be forbidden.
 Licenses are not contracts: the work's user is obliged to remain
 within the bounds of the license not because she voluntarily promised,
 but because she doesn't have any right to act at all except as the
 license permits.

 http://emoglen.law.columbia.edu/publications/lu-12.html 

 -- day5done

EU antitrust is also cool (was: A new practical problem...)

On 2/14/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
 First off, hello.

Hello Yorick.

What is your educated opinion regarding the GPL being in trouble re
http://europa.eu.int/comm/competition/legislation/treaties/ec/art81_en.html?

TIA.

regards,
alexander.

--
http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf

Re: GPL v3 Draft

On 2/14/06, John Goerzen [EMAIL PROTECTED] wrote:
[...]
 What purpose do you feel calling a person blind or an idiot serves?
 I don't think you are contributing anything to this discussion.

How about this:

http://www.linuxworld.com/story/43614.htm
(I am an Adjunct Professor at Duquesne University School of Law
teaching upper-level intellectual property law...)

I mean read it now (and try not to die... very high degree of ROFL).

And it's not a hoax.

http://www.santanderlaw.com/Nav%20Bar/Articles.htm

-
Practicing Law Without a License, (a rebuttal of a non-lawyer's
attack on software open source General Public License validity
issues), LinuxWorld, February 6, 2004.
-

Done with it? Now turn to

http://www.santanderlaw.com/Files/SCO%2520Litigation%2520Case%2520Study.pdf


When Linux is distributed under the GPL, the distributor (if it has
contributed to the code base) is the licensor and is sublicensing code
from other authors under the authority of the GPL to the user-licensee.
The result is that a large number of contributors to the Linux kernel
code are licensors (as well as licensees) under the GPL and have the
ability to enforce their contractual rights under the GPL just as any
other licensor would.


Contractual rights? User-licensee?

GPLv3:

9.[5] Not a Contract. (Rationale: Section 9 revises the
corresponding section in GPLv2 in various ways to make the provision
clearer.)

You are not required to accept this License in order to receive a
copy of the Program.

Hmmm.

It's just mind boggling how many different legal faces the GPL
possesses in Prof. Celia's mind. Ranging from
unilateral-permission-not-a-contract to just-like-normal-eula. Prof.
Celia must be truly excited by such legal chameleon.

[...]
   This right to exclude implies an equally large power to license--that
   is, to grant permission to do what would otherwise be forbidden.
   Licenses are not contracts: the work's user is obliged to remain
   within the bounds of the license not because she voluntarily promised,
   but because she doesn't have any right to act at all except as the
   license permits.

 That statement, if true, would appear to be valid only in 49 of the
 United States

United Sates?

Lee Hollaar the author of
http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his
treatise, not the Foreword written by the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee)
commented on that statement. Here's what Lee Hollaar who worked with
the Chief Judge and the Chief Intellectual Property Counsel to the
Senate Judiciary Committee on Internet, copyright, and patent issues
as a Committee Fellow said regarding truthfulness of that statement:

http://groups.google.com/group/misc.int-property/msg/4d2438aa5d80f803

--
In article [EMAIL PROTECTED] [EMAIL PROTECTED] writes:
Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily promised,
but because she doesn't have any right to act at all except as the
license permits. [quoting Eben Moglen]

That might be true IF she doesn't have any right to act at all except
as the license permits.  But as I have pointed out here and in my
comments to the FSF regarding the new GPLv3, that is not the case.
United States copyright law provides a number of exceptions to the
exclusive rights of the copyright owner, including first sale as
covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner
of a copy of a computer to reproduce or adapt it if necessary to use
it.

The convenient redefinition of things in the GPL reminds me of a
quote from Abraham Lincoln:
 How many legs does a dog have if you call the tail a leg?
 Four.  Calling a tail a leg doesn't make it a leg.
--

regards,
alexander.

Re: GPLv3 Drafting Process

 A

Interesting things are going on over there at gplv3.fsf.org Committee A.

http://gplv3.fsf.org/comments/rt/readsay.html?Query=%20Creator%20=%20'lrosen'%20%20AND%20'CF.NoteUrl'%20LIKE%20'gplv3-draft-1'%20Order=DESCOrderBy=idRows=

It appears that Rosen was (?is?) on the Committee A. He identified a
bunch of issues (including his comments and a bunch of comments made
by others) and claimed them for the Committee A. Now, just a few days
later someone fontana downgraded and removed all that stuff from
docket for Committee A.

I suppose that fontana belongs to Moglen's underling at SFLC Richard Fontana.

http://www.softwarefreedom.org/team.html

I knew that gplv3 process was destined to deliver first class
circus... and it turns out to be just stunning. ;-)

regards,
alexander.

Re: legal residence for corporations

2006-02-12 Thread Alexander Terekhov

On 2/12/06, Mahesh T. Pai [EMAIL PROTECTED] wrote:
[...]
 I believe that the position is similar in `Civil law' systems,
 (France, Germany and similar jurisprudential systems).

Strange things happen in the civil law district of Munich I.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL2_20040903.pdf

-
The defendant argued: The temporary injunction should be lifted
because the defendant is not liable to be sued. The plaintiff has
no right to sue him.. The defendant is not concerned with the
distribution and/or duplication and/or making public the software
!netfilter/iptables. He, the defendant, is a pure support company,
and is not concerned with selling, reproducing, or making available
the software. He has never undertaken these activities and will
not do so. It has previously been pointed out to the plaintiff that
selling, reproducing and making available software are not
undertaken by the defendant but by the company S[itecom] Europe BV.
Furthermore, there was a notification that the web site had already
been amended. It is obvious that the company [Sitecom] Europe BV
was to clarify the matter and the matter would be clarified by it.
There is therefore no reason to grant preliminary remedies.
-

Now, one can become a contributory infringer in Munich I on the
grounds that another legal person lists your address on its web
site... OK. But what the heck was the point of granting the
preliminary injunction


1. The defendant is under penalty […]

enjoined

from distributing and/or copying and/or making available to the public
the software
netfilter/iptables without at the same time – in accordance with the license
conditions of the GNU General Public License, Version 2 (GPL) – making
reference to the licensing under the GPL and attaching the license text of
the GPL as well as making available the source code of the software netfilter/
iptables free of any license fee.


given that the defendant has explained that he has never undertaken
these activities and will not do so. Go figure.

regards,
alexander.

Re: Distriution of GPL incompatible libraries

2006-02-12 Thread Alexander Terekhov

On 2/12/06, Josh Triplett [EMAIL PROTECTED] wrote:
[...]
  However, what if the customer then wanted to sell the machine, or if
  the company wanted to sell machines with this incompatible binary and
  library preinstalled. Would this violation the GPL, or is it possible
  that the companies modifcations are hiding behind the BSD license
  library ?

 This would violate the GPL.  The violation occurs once you want to
 distribute a GPLed binary linked to a GPL-incompatible library.

Only in the GNU Republic where software belongs to state (and hence it
is regulated by state permits akin to lottery or gun dealership which
are neither contracts nor property rights), and both 17 USC 109 and 17
USC 117 are simply nonexistent. Then comes the doctrine of copyright
misuse... GPL violation of which has raised to the level of antitrust
violation according to Wallace... and according to Prof. Nadan it
doesn't even have to raise to the level of antitrust violation because
linking claims alone are sufficient to put the entire GPL'd code base
into quasi public domain (the penalty for copyright misuse). So pick
your choice, GNUtians.

regards,
alexander.

Re: FYI: Savannah forces new projects to use GFDL for documentation

2006-02-11 Thread Alexander Terekhov

Hey Gymnasist, be advised that if Wallace

http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf

won't succeed in US, I'll invite him to Germany.

http://www.allenovery.com/asp/pdf/gercomplaw.pdf

--
Rules on distribution

Basics

Vertical relationships between market participants operating on
different market levels enjoy a more liberal set of rules under
German law since they are generally considered to promote inter-
brand competition. Only narrowly circumscribed conduct is
directly prohibited by Sections 14, 15, 17, 18 and 21 to 23 ARC.
Per se prohibitions first and foremost focuses on resale price
maintenance (including commercial agreements producing the same
effect): prices and other terms of business in agreements with
third parties must be freely determinable (Section 14 ARC).
--

And I suppose you do known that SCO was silenced in Germany on
the grounds of German competition laws. Keep in mind that FSF
is also a blatant violator (dubious claims of GPL
Incompatibility) just like SCO Germany. That's apart from FSF's
price-fixing GPL antitrust conspiracy.

regards,
alexander.

On 2/11/06, Sebastian Wieseler [EMAIL PROTECTED] wrote:
 Hello Francesco Poli, hello list,
 I should clarify things here...

 You wrote:
  On Fri, 10 Feb 2006 13:25:03 +1100 Matthew Palmer wrote:
 
 My opinion of FSF people is descending rapidly here.
 
  Dropping down, down, down...  :-(

 Don't think of all people in the FSF. Thanks.

 Revising history is never a good sign.
 
  Agreed fully.

 It's a kind of free speech; I can delete my blog entries where ever I
 think it is usefull and here it was usefull.

 I posted an entry about - first an unofficial statement of us (while we
 was in discussion mode) and second about a false reason (even like it
 was understandable for me).
 So you should respect me and don't post the caches of my sites anywhere.
 Thanks a lot! (even if it is allowed under the terms of the GNU FDL,
 it's a kind of politness)


 Another point is that we posted yesterday an official statement about
 this issue on Savannah -
 https://savannah.gnu.org/forum/forum.php?forum_id=4303


 Regards,
 Sebastian Wieseler, Savannah hacker,

 --
 | kickino.org || logic-bomb.org || forkbomb.ch || herder-gymnasium.de |
,= ,-_-. =.
   ((_/)o o(\_))
`-'(. .)`-'
\_/


 --
 To UNSUBSCRIBE, email to [EMAIL PROTECTED]
 with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]

Re: FYI, kernel firmware non-freeness discussions

2006-02-09 Thread Alexander Terekhov

On 1/14/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/14/06, Anthony DeRobertis [EMAIL PROTECTED] wrote:
  We should start a betting pool[0] on when Wallace v. FSF will be
  dismissed (again).

 I bet EURO 50 (through PayPal) that the FSF is going to lose it
 once again and won't get dismissal with prejudice through that
 motion.

I bet another EURO 50 (through PayPal) that Red Hat and Novell are
also going to lose and won't get dismissal under 12(b)(6).

http://www.terekhov.de/Wallace_v_Red_Hat_2nd_ANSWER.pdf

Hey GNUtians, let's play.

regards,
alexander.

Re: Moglen's all good faith

2006-02-09 Thread Alexander Terekhov

On 1/20/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
[...]
My dossier is rapidly growing.

And growing.

Here's more evidence that notwithstanding what the FSF says to the
judge in Indiana, the FSF's own director and lead counsel in fact
(and in all good faith) doesn't really understand the licensing terms
relevant to the use of Linux.

http://lwn.net/Articles/147070/

LWN: A while back, you said something about getting an answer from
Linus on the Linux kernel license. Since there is a COPYING file
that makes it clear that the kernel is governed under the GPL,
where's the uncertainty?

Eben: If the kernel is pure GPL, then I think we would all agree
that non-GPL, non-free loadable kernel modules represent GPL
violations. Nonetheless, we all know that there are a large number
of such modules and their existence is tolerated or even to some
degree encouraged by the kernel maintainers, and I take that to
mean that as an indication that there is some exception for those
modules.

The kernel also maintains a technical mechanism, namely the
GPL-only symbols and tainting structure, which seems to suggest an
API for the connection of non-GPL'ed code to the kernel, which also
seems to me a strong indication of the presence of an exception.
The difficulty as a lawyer, even a lawyer that is reasonably
knowledgeable about these matters, is that I don't understand what
the terms of that exception are.

So, say I want to audit a system, say an embedded product, in which
I find non-GPL loadable kernel modules present, how do I know
whether that fits within an exception which is legitimately
available to third parties and when it is not?

[...]

So then there are parties in the world who think they are in legal
trouble on one side with the regulators if they do release source
code for loadable kernel modules that drive their software-
controlled radios, and they don't know if they're in legal trouble
on the other side if they don't release source code. For those
parties, in particular, it would be very helpful if the kernel
developers had decided to formalize the nature of their exceptions,
and the Free Software Foundation and I have made a few attempts to
discuss that matter with kernel developers. I had conversations
with Ted Ts'o, I talked to Linus about it and I understood there
were some reluctances to clarify, in a full and complete way, what
was going on. There may have even been disagreements among kernel
developers about that, I wouldn't know. But I continue to think
that it would be useful, for a whole variety of people who are
trying in good faith to do the very best they can, and who may be
navigating some dodgy legal territory, for them to be able to
refer to something beyond the COPYING file which -- with all due
respect -- I think probably doesn't contain all the terms that are
relevant to the use of the kernel.

LWN: So, if the kernel is covered solely by the GPL, you would see
proprietary modules as an infringement?

Eben: Yes. I think we would all accept that. I think that the
degree of interpenetration between kernel modules and the remainder
of the kernel is very great, I think it's clear that a kernel with
some modules loaded is a a work and because any module that is
dynamically loaded could be statically linked into the kernel, and
because I'm sure that the mere method of linkage is not what
determines what violates the GPL, I think it would be very clear
analytically that non-GPL loadable kernel modules would violate the
license if it's pure GPL.
-

Now the most charming piece of Moglen's proclamations regarding
GNU legal system (from another article):

-
As to the definition of derivative work, the uncertainty is
experienced by those who would like to make proprietary uses of
GPL'd code, and are unsure whether a particular way of making a
proprietary enhancement to a free work will certainly or only
arguably infringe the free developer's copyright. The correct
answer, of course, is that those who want to take advantage of the
enormous quantity of freely distributable best of breed
software now available should do so in a fashion that respects the
principle of freedom in which it was created. All doubt can be
eliminated, for Mr. Michaelson and all other seekers after wisdom,
if they remember what they learned in kindergarten: share and share
alike. IBM, HP, Novell, and other very large and very profit-minded
businesses have no problem with this, nor should Mr. Michaelson's
readers.
-

Well, HP, Novell, and other very large and very profit-minded
aside for a moment,

http://www-128.ibm.com/developerworks/linux/linux390/october2005_recommended.html#RETocos20051014
(OCO modules for the October 2005 stream)

It doesn't seem to match with Moglen's alternative reality.

regards,
alexander.

Re: Distriution of GPL incompatible libraries

2006-02-06 Thread Alexander Terekhov

On 2/5/06, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote:

[... bloby Eben's manifestations of blatant copyright misuse*** ...]

 Thanks, that makes it clearer.

Bitteschoen, bittesehr.

Now be a good GNItian and go https://www.fsf.org/donate.

regards,
alexander.

***) http://www.xfree86.org/pipermail/forum/2004-March/004248.html

Re: libgsm: right to distribute

2006-02-06 Thread Alexander Terekhov

On 2/4/06, Glenn Maynard [EMAIL PROTECTED] wrote:
 On Sat, Feb 04, 2006 at 07:19:28PM +0100, Moritz Muehlenhoff wrote:
  Simon Neininger wrote:
   Copyright 1992, 1993, 1994 by Jutta Degener and Carsten Bormann,
   Technische Universitaet Berlin
 
  Carsten is my thesis counsellor, I'll ask him for clarification.
 
  I have no reason to believe that distribution is not permitted,
  though.

 It's probably intended, but the license doesn't say that.

Distribution of authorized copies per statute aside for a moment, the
guys are from Germany. In Germany, unqualified Nutzungsrecht (right
to use) means a non-exclusive license to exercise the whole bundle of
licensable rights.

Go try to Babel Fish (or alike) translate
http://creativecommons.org/licenses/by/2.0/de/legalcode for example.

You'll get something along the lines of:

-
3. Lizenzierung. Under the conditions of this license agreement the
licenser a royalty-free grants, spatially and temporally (for the
duration of copyright or used patent right) unrestricted simple right
to use to you to use the protection article ... blah blah
-

regards,
alexander.

Re: libgsm: right to distribute

2006-02-04 Thread Alexander Terekhov

On 2/4/06, Simon Neininger [EMAIL PROTECTED] wrote:
[...]
 Does the term Any use give the user the right to distribute libgsm?

The right to distribute authorized copies is statutory. See 17 USC 109
 (it is commonly called first sale, but the actual parameters of the
rule are specified in the statute and not some lay reading of first,
sale, or even first sale). Over here in the EU, that statutory
doctrine is known as copyright exhaustion.

regards,
alexander.

Re: Distriution of GPL incompatible libraries

2006-02-04 Thread Alexander Terekhov

On 2/4/06, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote:
[...]
 I hope i have it right this time...

In the GNU Republic you'll end up in jail.


One of the questions with the GPL is about how tightly you may link
GPL code with non-GPL code, for example, when you compile a GPL
program and it uses other code in a software library. Have you done
anything to define how tightly GPL code may be linked with non-GPL
code? Under what circumstances is that permitted and not permitted?


Bloby Eben:

We have made one clarification, as we see it, of what we believe was
always the rule. We reasserted that code dynamically linked to GPL
code--which the GPL code is intended to require, not merely optionally
incorporate--is part of the source code of the work under the GPL and
must be released.

and (in another interview)

The language or programming paradigm in use doesn't determine the
rules of compliance, nor does whether the GPL'd code has been
modified.  The situation is no different than the one where your code
depends on static or dynamic linking of a GPL'd library, say GNU
readline. Your  code, in order to operate, must be combined with the
GPL'd code,  forming a new combined work, which under GPL section 2
(b) must be distributed under the terms of the GPL and only the GPL.

IBM: (Tenth Defense)

SCO's claims are barred by the doctrine of copyright misuse.

s/SCO/FSF

regards,
alexander.

Re: Distriution of GPL incompatible libraries

2006-02-04 Thread Alexander Terekhov

On 2/5/06, Walter Landry [EMAIL PROTECTED] wrote:
 [EMAIL PROTECTED] wrote:
  Quoting Walter Landry [EMAIL PROTECTED]:
 
   This is tricky.  The relevant section in the GPL is
  
 But when you distribute the same sections as part of a whole which
 is a work based on the Program, the distribution of the whole must
 be on the terms of this License, whose permissions for other
 licensees extend to the entire whole, and thus to each and every
 part regardless of who wrote it.
  
   So, is the library part of the whole?  If the company does not
   distribute the BSD licensed library on the machine, then it is fairly
   clear that the proprietary library is part of the whole.  However, if
   the BSD library is also included, then it becomes unclear.  I could
   see it going either way, depending on the judge and lawyers.
  
   This is what you call lawyerbait.
 
  Thanks for your reply, just a clarification.
 
  The section of the GPL you posted above is from section 2 which covers
  distribution of  modified GPL'ed works.
 
  In this case the GPL binary being distriuted is from unmodified source
  code, all the modifications are in the GPL incompatible library.
  The GPL apps dont need to be modified as the GPL incompatible library
  is a drop in replacment for the existing BSD license that the GPL app
  was built against.
 
  So i assume now that they are distributing the GPL app under clause 1,
  that they can distribute the unmodified GPL binary and GPL incompatible
  library together, and are only required to make source available for the
  GPL'ed application, not the GPL incompatible library.

 Distributing object code falls under clause 3, which references clause
 2.  Clause 2 talks about modified work as a whole which even
 includes parts which can be reasonably considered independent and
 separate works in themselves.  So whether the GPL'd parts are
 modified does not actually matter.

Hey bug1, and it doesn't mean that by refraining from distributing
GPL'd object code (distribute GPL'd source code only) you can escape
copyleft -- it's impossible to escape copyleft in the land of true
GNUtians.

regards,
alexander.

Re: Moglen's all good faith

2006-01-29 Thread Alexander Terekhov

On 1/29/06, Marco d'Itri [EMAIL PROTECTED] wrote:
 [EMAIL PROTECTED] wrote:

 Development of proprietary kernel modules is tolerated, see
 EXPORT_SYMBOL vs. EXPORT_SYMBOL_GPL.  AFAICS, this special exception
 to the GPL has never been formalized, but at least overe here the mere
 While proprietary kernel modules are tolerated, there is no special
 exception to the GPL, EXPORT_SYMBOL_GPL is just a technological measure
 used to make GPL violations more evident and subject to the DMCA.

What violations? And what does DMCA has to do with EXPORT_SYMBOL_GPL
and tainting idiocy which has the only purpose to impede
interoperability with non-GPL'd code?

Anyone can patch the kernel to get rid of that silliness completely or
reexport what's required in a non-GPL-GPL support module.

That's not to mention straight GPL\0sucks workaround.

The GNUtians among kernel developers simply never heard of Sega v
Accolade. Genesis III searches the game program for four bytes of
data consisting of the letters S-E-G-A (the TMSS initialization
code)...

regards,
alexander.

Re: Moglen's all good faith

2006-01-29 Thread Alexander Terekhov

One more nail in EXPORT_SYMBOL_GPL coffin...

On 1/30/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/29/06, Marco d'Itri [EMAIL PROTECTED] wrote:
  [EMAIL PROTECTED] wrote:
 
  Development of proprietary kernel modules is tolerated, see
  EXPORT_SYMBOL vs. EXPORT_SYMBOL_GPL.  AFAICS, this special exception
  to the GPL has never been formalized, but at least overe here the mere
  While proprietary kernel modules are tolerated, there is no special
  exception to the GPL, EXPORT_SYMBOL_GPL is just a technological measure
  used to make GPL violations more evident and subject to the DMCA.

 What violations? And what does DMCA has to do with EXPORT_SYMBOL_GPL
 and tainting idiocy which has the only purpose to impede
 interoperability with non-GPL'd code?

 Anyone can patch the kernel to get rid of that silliness completely or
 reexport what's required in a non-GPL-GPL support module.

 That's not to mention straight GPL\0sucks workaround.

 The GNUtians among kernel developers simply never heard of Sega v
 Accolade. Genesis III searches the game program for four bytes of
 data consisting of the letters S-E-G-A (the TMSS initialization
 code)...

And more recent Lexmark v. Static Control.

In view of our conclusion regarding the Printer Engine Program, we
can dispose quickly of
Lexmark's DMCA claim regarding the Toner Loading Program.

regards,
alexander.

Re: GPL and Court Procedure (was Re: Adobe open source ...)

On 1/28/06, Pedro A.D.Rezende [EMAIL PROTECTED] wrote:
[...]
 Like, say, ordered set of instructions to mean computer program

Hey Prof., how about a series of instructions?


  If you won't write something that means
  anything, is there some reason I should continue replying?

 Feed the troll?

Go ahead.

regards,
alexander.

Re: Hi to All!

On 1/28/06, INFONOVA [EMAIL PROTECTED] wrote:
 Hi!

Hi!

Educated by Prof. Pedro?

regards,
alexander.

Re: Adobe open source license -- is this licence free?

Another dose of pain to plonked Miller and other FSF's lackeys (kudos
to Wallace for calling the bluff)...

On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 Hey plonked Miller, breaking news...

 On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
  On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote:
   On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
What argument?
  
   http://lists.debian.org/debian-legal/2006/01/msg00475.html
 
  Edwards has already explained it to you. A question of law is
  addressed by likelihood of success on that portion breach of contract
  claim that concerns its trademark (with another portion being breach
  of the GPL), by cure the breach (one just can't cure a copyright
  violation), by not applying (In any event, even if MySQL has shown a
  likelihood of success on these points...) the copyright standard with
  presumption of irreparable harm (and using contract standard instead),
  and etc.

 Wallace v FSF. REPLY BRIEF IN SUPPORT OF REASSERTED MOTION
 TO DISMISS:

 quote

 Plaintiff's mischaracterization of the GPL in his Response has no
 bearing on the resolution of the pending Motion to Dismiss because the
 Court can examine the GPL itself. [T]o the extent that the terms of
 an attached contract conflict with the allegations of the complaint,
 the contract controls.

 /quote

Reactions to that latest FSF' piece of impeccable lawyering:


Re: FSF says that the contract controls
by: day5done

The lawyers for the FSF must'a been smokin' the good stuff from Merkey's
stash.

Everyone who is neither blind nor an idiot knows for certain that the
GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman has clarified that
fact at least a hundred times.

Dollar to a dime Eben Moglen fires the lame asses over at the ICE MILLER
law firm real soon.


-
GPL Hollaaring
by: walter_oak_night

ICE on automatic aggregation of software copyrights
In fact, the GPL itself rejects any automatic aggregation of software
copyrights under the GPL simply because one program licensed under the
GPL is distributed together with another program that is not licensed
under the GPL: In addition, mere aggregation of another work not based
on the Program with the Program (or with a work based on the Program) on
a volume of a storage or distribution medium does not bring the other
work under the scope of this License.

Linux kernel v. application
And as the copyright notice in the kernel sources says, user
applications are not subject to the GPL.

Supported by Hollaar:
With dynamically-linked libraries, the application program being
distributed is no longer a compilation that includes the library.
Because the library is not being distributed with the application
program, no permission is needed from the copyright owner of the library
for the distribution to users. Users must, of course, be authorized to
use the library, but if they are owners of a copy of the library, under
Section 117 they can make any adaptations of the library necessary to
use it with the application program.

FSF GPL FAQ
I'd like to modify GPL-covered programs and link them with the
portability libraries from Money Guzzler Inc. I cannot distribute the
source code for these libraries, so any user who wanted to change these
versions would have to obtained those libraries separately. Why doesn't
the GPL permit this? ….
http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc

FAQ as Fact
In 2002, a company named Global Technologies Ltd (now defunct) had
ported some 4.5M lines of GPL/BSD and other open source code to Windows
using ATT Uwin. They claimed less than 500 lines had to be changed and
all changes went back to original authors. The binaries were distributed
from their web site, but one day disappeared. My $50.00 check for a CD
distribution of the binaries and source, which indicated $25 gift to
FSF, was returned with a letter explaining Moglan threatened legal
action for violating the GPL because the code was linked with ATT
uwin's proprietary posix.dll that provided the POSIX interface on
windows.

Hollaar disagress
Some have claimed that an application program that needs a library for
its operation is a derivative work of that library. They take that
position because the application program is based on the library
because it was written to use the subroutines and other aspects of the
library. Such a position is misplaced
No other conclusion makes sense. If it were not the case, then any
program using the applications program interfaces (APIs) of an operating
system could be considered a derivative work of that operating system.
And, under the exclusive right to prepare derivative works, the
copyright owner of an operating system such as Microsoft Windows could
control who was allowed to write programs for that operating system.

What was that automatic rejection again?
-

-
Re: GPL Hollaaring FAQ or Fiction
by: walter_oak_night

Moglen got on the phone, resulting in both of the attorneys

Re: Distriution of GPL incompatible libraries

On 1/27/06, Walter Landry [EMAIL PROTECTED] wrote:
 Glenn L. McGrath [EMAIL PROTECTED] wrote:
  Hi all;
 
  This question doesn't directly relate to debian, but i hope you can
  help straighten me out with this.
 
  I'm trying to understand licensing obligations in regard to GPL'ed
  binaries that link to GPL incompatible libraries.

 First of all, don't pay attention to anything that Alexander Terekhov
 writes.  He is the biggest troll I have seen on debian-legal for a

Landry, Landry. Bad memory you have. You've been trolled by me long
ago on boost.org.
(Gah. I have been trolled. last link below)

http://lists.boost.org/Archives/boost/2004/05/64968.php
http://lists.boost.org/Archives/boost/2004/05/65036.php
http://lists.boost.org/Archives/boost/2004/05/65056.php
http://lists.boost.org/Archives/boost/2004/05/65062.php
http://lists.boost.org/Archives/boost/2004/05/65070.php
http://lists.boost.org/Archives/boost/2004/05/65083.php
http://lists.boost.org/Archives/boost/2004/05/65086.php
http://lists.boost.org/Archives/boost/2004/05/65107.php

[... whole ... machine ...]

Only machine? Why not GPL a whole building?

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote:
 Wesley J. Landaker writes:

  On Friday 27 January 2006 20:29, Michael Poole wrote:
   There's little or no evidence that requiring creators of a derivative
   of some software to identify themselves would prevent a free use of
   the software.  Does that mean the Dissident test is irrelevant?
 
  Yeah, since the dissident test has nothing do to with the DFSG, except by
  quite a big a stretch of the imagination.
 
  Not to say it's not a valuable thought experiment in some cases, but it sure
  isn't the great canonical test that some people here seem to think it is.

 I submit that, under this logic, fees to execute software or create
 derivative works are free since they are not mentioned anyhere in the
 DFSG.  The usual response to this is that Debian would be restricted
 in doing things like porting software, fixing bugs, and so forth.  The
 SC and DFSG make no mention of those tasks, either.

http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:11413
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:11421

regards,
alexander.

Re: Adobe open source license -- is this licence free?

More pain to plonked Miller and other FSF's lackeys.

On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 Just to stress...

 On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
  On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote:
   On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
  And licensing software is not selling it.
   
Yorick, Yorick. The courts disagree.
  
   And then quotes as proof a huge chunk of text which includes
   the explanation:
  
A number of courts have held that the sale of software is the sale of
a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd.
v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929
F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147,
1150 (6th Cir. 1991). It is well-settled that in determining whether a
transaction is a sale, a lease, or a license, courts look to the
economic realities of the exchange.
  
   In other words: when money changes hand in the sale of software,
   it's fair to say that the person getting the software has been sold
   a licensed copy of that software (at least, when the sale is legal).
  
   This shouldn't be very surprising.  Many books get published under
   an all rights reserved license, but the people who buy those
   books are still allowed to turn around and transfer the copy to
   someone else.
  
   A person could even say that the economic realities of the
   exchange are different when no money moves from the recipient
   of the software to the copyright holder.
 
  Hey plonked Miller, gratis copies also fall under the first sale
  (for which the trigger is nothing but ownership of a particular copy
  or phonorecord lawfully made).
 
  But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh.

 Go read 17 USC in its entirety (hello as a whole-in-the-GPL hello)
 including section 109. 106(3) is severely limited by the exception
 to 106(3) in section 109. The reason why 106(3) is listed in 106 is to
 provide legal basis to punish not only somebody who pirates works and
 who may not even try or want to distribute pirated copies, but also
 somebody who distributes pirated copies to the public that were
 unlawfully made by another. Now, plonked Miller, you tell me how does
 that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps
 you can. I doubt it.

Here's what the author of
http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his
treatise, not the Foreword written by the Chief Judge and the Chief
Intellectual Property Counsel to the Senate Judiciary Committee) who
worked with the Chief Judge and the Chief Intellectual Property
Counsel to the Senate Judiciary Committee on Internet, copyright, and
patent issues as a Committee Fellow had to say about the GNU legal
nonsense version 3.

comment 388: Not a correct statement of copyright law
Regarding the text: However, nothing else grants you permission to
propagate or modify the Program or any covered works.
In section: gpl3.notacontract.p0.s3

Submitted by: hollaar
comments:

This is not a correct statement of copyright law, at least in the
United States. With respect to propagate, it is likely a tautology
because of the defintion of propagate covering only things that
require permission under applicable copyright law. But for modify,
17 U.S.C. 117 permits the owner of a copy of a computer program to
make an adaptation in particular circumstances, and makes it clear
that making that adaptation does not infringe copyright if you do not
accept this License. It also does not seem to recognize the first
sale doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy without the authority of the copyright owner.
Perhaps the interplay between the definition of propagate and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.
noted by hollaar

comment 389: Not a correct statement
Regarding the text: You may not propagate, modify or sublicense the
Program except as expressly provided under this License.
In section: gpl3.termination.p0.s1
Submitted by: hollaar
comments:

As I noted in more detail in my comments on Paragraph 9, this is not
an accurate statement. In the United States, 17 U.S.C. 109 (first
sale) and 117 (computer programs) allow the owner of a
lawfully-made copy to modify it in certain circumstances and to
redistribute it without permission of the copyright owner.
noted by hollaar

comment 390: Permission may not be required for use
Regarding the text: which means permission for use
In section: gpl3.licensecompat.p6.s1
Submitted by: hollaar
comments:

In the United States, at least, permission may not be required to use
a computer program if the user is the lawful owner of a copy. See 17
U.S.C. 117. United States copyright law does not give

Re: Adobe open source license -- is this licence free?

On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote:
[...]
 Plonk doesn't mean let's ignore the person's argument and then

What argument? Edwards has wasted enough time on you in the past and
you still don't grok a simple fact that IP licenses are contracts
which is not akin to lottery or other state permits (unless of course
you happen to live together with Moglen in the GNU Republic where IP
belongs to the state) and that Judge Saris' ruling is quite a proof
of that concept.

 start posting harassing emails.  Plonk means I'm putting this person
 in my kill file, which is why I'm not going to be able to react to what
 they write in the future.

Obviously I didn't killfile you. I use that moniker to convey the idea
that you're a Person with Little Or No Knowledge at least regarding
copyrights and IP licensing.


 None of which explains why you're now talking about phonorecords,
 but I figure: maybe you're bored.

Go tell this to the US Congress and US President, plonked Miller.

http://www.bitlaw.com/source/17usc/109.html

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote:
 On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
  What argument?

 http://lists.debian.org/debian-legal/2006/01/msg00475.html

Edwards has already explained it to you. A question of law is
addressed by likelihood of success on that portion breach of contract
claim that concerns its trademark (with another portion being breach
of the GPL), by cure the breach (one just can't cure a copyright
violation), by not applying (In any event, even if MySQL has shown a
likelihood of success on these points...) the copyright standard with
presumption of irreparable harm (and using contract standard instead),
and etc.

regards,
alexander.

Re: Adobe open source license -- is this licence free?

Hey plonked Miller, breaking news...

On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote:
  On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
   What argument?
 
  http://lists.debian.org/debian-legal/2006/01/msg00475.html

 Edwards has already explained it to you. A question of law is
 addressed by likelihood of success on that portion breach of contract
 claim that concerns its trademark (with another portion being breach
 of the GPL), by cure the breach (one just can't cure a copyright
 violation), by not applying (In any event, even if MySQL has shown a
 likelihood of success on these points...) the copyright standard with
 presumption of irreparable harm (and using contract standard instead),
 and etc.

Wallace v FSF. REPLY BRIEF IN SUPPORT OF REASSERTED MOTION
TO DISMISS:

quote

Plaintiff's mischaracterization of the GPL in his Response has no
bearing on the resolution of the pending Motion to Dismiss because the
Court can examine the GPL itself. [T]o the extent that the terms of
an attached contract conflict with the allegations of the complaint,
the contract controls.

/quote

regards,
alexander.

Re: GPL and Court Procedure (was Re: Adobe open source ...)

On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote:
[...]
 anything, is there some reason I should continue replying?

You can't read. Stop replying. Drop an email to Judge Saris telling
her that you can't read and asking her to phone you back.

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
  And licensing software is not selling it.

Yorick, Yorick. The courts disagree.


Adobe asserts that its license defines the relationship between Adobe
and any third-party such that a breach of the license constitutes
copyright infringement. This assertion is not accurate because
copyright law in fact provides certain rights to owners of a
particular copy. This grant of rights is independent from any
purported grant of rights from Adobe.

(2) Sale v. License

(a) Historical Background

Historically, the purpose of licensing computer program copy use was
to employ contract terms to augment trade secret protection in order
to protect against unauthorized copying at a time when, first, the
existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use licensing
continued after federal courts interpreted the Copyright Act to
provide substantial protection for computer programs as literary
works. (Id. at ¶ 7.) In Step-Saver Data Systets, Inc. v. Wise
Technology, the Third Circuit examined the historical development of
the use of licensing in the software industry and concluded that
subsequent changes to the Copyright Act had rendered the need to
characterize the transaction as a license largely anachronistic. 939
F.2d 91, 96 n.7 (3d Cir. 1991).10



10 The court in Step-Saver explained: When these form licenses
were first developed for software, it was, in large part, to avoid the
federal copyright law first sale doctrine . . . . Under this doctrine,
one could purchase a copy of a computer program, and then 'Lease it or
lend it to another without infringing the copyright on the program. .
. . Consumers, instead of purchasing their own copy of the program,
would simply rent a copy of the program, and duplicate it . . . .
[S]oftware producers wanted to sue the companies that were renting the
copies of the program to individual consumers, rather than the
individual consumers. Th: first sale doctrine, though, stood as a
substantial barrier to successful suit against these software rental
companies, even nder a theory of contributory infringement. By
characterizing the original transaction between the software producer
and the software rental company as a license, rather than a sale, and
by making the license personal and non-transferable, software
producers hoped to avoid the reach of the first sale doctrine and to
establish a basis in state contract law for suing the software rental
companies directly. Questions remained, however, as to whether the use
of state contract law to avoid the first sale doctrine would be
preempted either by the federal copyright statute (statutory
preemption) or by the exclusive constitutional grant of authority over
copyright issues to the federal government (constitutional
preemption). [Citations.] Congress recognized the problem, and, in
1990, amended the first sale doctrine as it applies to computer
programs and phonorecords. [Citations.] As amended, the first sale
doctrine permits only non-profit libraries and educational
institutions to lend or lease copies of software and phonorecords.
[citations.] (Under the amended statute, a purchaser of a copy of a
copyrighted computer program may still sell his copy to another
without the consent of the copyright holder.). 939 F.2d at 96, n.7.

(b) Adobe Sells its Software
...

A number of courts have held that the sale of software is the sale of
a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd.
v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929
F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147,
1150 (6th Cir. 1991). It is well-settled that in determining whether a
transaction is a sale, a lease, or a license, courts look to the
economic realities of the exchange. Microsoft Corp. v. DAK Indus., 66
F.3d 1091 (9th Cir. 1995); United States v. Wise, 550 F.2d 1180 (9th
Cir. 1977). In DAK, Microsoft and DAK entered into a license agreement
granting DAK certain nonexclusive license rights to Microsoft's
computer software. The agreement provided that DAK would pay a royalty
rate per copy of computer software that it distributed. Subsequently,
DAK filed a petition for bankruptcy, and failed to pay the final two
out of a total of five installments. Microsoft filed a motion for the
payment of an administrative expense, claiming that it should be
compensated for DAK's post-bankruptcy petition use of the license
agreement. On appeal, the Ninth Circuit held that the economic
realities of the agreement indicated that it was a sale, not a license
to use. Thus, Microsoft simply held an unsecured claim and not an
administrative expense. The court found that the agreement was best
characterized as a lump sum sale of software units to DAK,

Re: Adobe open source license -- is this licence free?

On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
[...]
 Beware, what you are citing is an opinion, and not the actual legal
 framework.

Yorick, Yorick. I suggest you go talk to Hoeren on software
licensing in Europe.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

The Prof. is no stranger.

http://de.wikipedia.org/wiki/Thomas_Hoeren

http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf

MEMBERSHIP IN PROFESSIONAL BODIES

Member/Vice President, German Association for Law and Informatics (DGRI);
Member, Society for Computers and Law, U.K.;
Member, German-Japanese Law Association, Hamburg and Tokyo;
Co-editor Computer und Recht, Computer and Law, Cologne;
Member, Institute for European Media law, Saarbrücken;
Member, Editorial Board, Law, Computers and Artificial Intelligence,
BNA's Electronic
Information Policy and Law Report and EDI Law Review;
Legal Advisor, European Commission/DG XIII, Legal Advisory Board on Information
Technology;
Co-editor, Multimedia und Recht, Munich;
Member, Task Force Group on Intellectual Property Rights of the
European Commission;
Legal expert in several research projects commissioned by the European
Commission/DG III
(COPEARMS), DG XIII (MULTISOLUTION, EDIBOL, EDIPAY) and the DG XV;
Member, Legal Advisory Board, DENIC, Frankfurt.

AREAS OF SPECIALIZATION

Intellectual Property law;
Internet Regulation;
Information Law;
Unfair Competition Law;
International Business Law.

EXPERIENCE IN INTELLECTUAL PROPERTY

Judge at the Court of Appeal in Düsseldorf within the Trademark 
Copyright Senate;
Professor in Intellectual Property Law at the University of Muenster;
Member, Task Force Group on Intellectual Property Law, European
Commission/DG XIII.

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
 On Thu, Jan 26, 2006 at 11:07:02AM -0500, Michael Poole wrote:

[... blame geography ...]

For the record: I agree with Yorick regarding venue. Poole is dead
wrong as usual.

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote:
 On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
  On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
  [...]
And licensing software is not selling it.
 
  Yorick, Yorick. The courts disagree.

 And then quotes as proof a huge chunk of text which includes
 the explanation:

  A number of courts have held that the sale of software is the sale of
  a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd.
  v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929
  F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147,
  1150 (6th Cir. 1991). It is well-settled that in determining whether a
  transaction is a sale, a lease, or a license, courts look to the
  economic realities of the exchange.

 In other words: when money changes hand in the sale of software,
 it's fair to say that the person getting the software has been sold
 a licensed copy of that software (at least, when the sale is legal).

 This shouldn't be very surprising.  Many books get published under
 an all rights reserved license, but the people who buy those
 books are still allowed to turn around and transfer the copy to
 someone else.

 A person could even say that the economic realities of the
 exchange are different when no money moves from the recipient
 of the software to the copyright holder.

Hey plonked Miller, gratis copies also fall under the first sale
(for which the trigger is nothing but ownership of a particular copy
or phonorecord lawfully made).

But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh.

regards,
alexander.

Re: Adobe open source license -- is this licence free?

Just to stress...

On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote:
  On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
   On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
   [...]
 And licensing software is not selling it.
  
   Yorick, Yorick. The courts disagree.
 
  And then quotes as proof a huge chunk of text which includes
  the explanation:
 
   A number of courts have held that the sale of software is the sale of
   a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd.
   v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929
   F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147,
   1150 (6th Cir. 1991). It is well-settled that in determining whether a
   transaction is a sale, a lease, or a license, courts look to the
   economic realities of the exchange.
 
  In other words: when money changes hand in the sale of software,
  it's fair to say that the person getting the software has been sold
  a licensed copy of that software (at least, when the sale is legal).
 
  This shouldn't be very surprising.  Many books get published under
  an all rights reserved license, but the people who buy those
  books are still allowed to turn around and transfer the copy to
  someone else.
 
  A person could even say that the economic realities of the
  exchange are different when no money moves from the recipient
  of the software to the copyright holder.

 Hey plonked Miller, gratis copies also fall under the first sale
 (for which the trigger is nothing but ownership of a particular copy
 or phonorecord lawfully made).

 But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh.

Go read 17 USC in its entirety (hello as a whole-in-the-GPL hello)
including section 109. 106(3) is severely limited by the exception
to 106(3) in section 109. The reason why 106(3) is listed in 106 is to
provide legal basis to punish not only somebody who pirates works and
who may not even try or want to distribute pirated copies, but also
somebody who distributes pirated copies to the public that were
unlawfully made by another. Now, plonked Miller, you tell me how does
that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps
you can. I doubt it.

regards,
alexande

Re: Adobe open source license -- is this licence free?

On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote:
 On Thu, Jan 26, 2006 at 05:47:37PM -0500, Michael Poole wrote:
 Michael If the laws governing default fora are flawed, please fix
 those laws.

 Very well. I am now off to fix the laws of every country in the
 world.

Take me, take me with you, oh please, Yorick.

 I will tell legislators that it is because any other conduct
 might mean that a few posters on Debian-legal feel those laws unfairly
 discriminate agaisnt people in different geographic locations. While
 I'm at it, I'll also invent teletransportation,

Nah. Done already. Almost.

http://www.research.ibm.com/quantuminfo/teleportation/

regards,
alexander.

Re: Adobe open source license -- is this licence free?

On 1/27/06, Glenn Maynard [EMAIL PROTECTED] wrote:
[...]
 Agreeing to the condition--[whatever]--is a condition to receive
 the license to the software.

Well, the GPLv3, for example, elaborates on GPLv2 section 5 (go read
its first statement) and says that You are not required to accept
this License in order to receive a copy of the Program.

 If you don't agree to the [whatever], then you don't get the license.

True. You just get a copy of software. Without a license. Must be a
felony in the GNU Republic.

regards,
alexander.

Re: Moglen on kernel firmware blobs

2006-01-24 Thread Alexander Terekhov

On 23 Jan 2006 16:14:00 +0100, Claus Färber [EMAIL PROTECTED] wrote:
 Marco d'Itri [EMAIL PROTECTED] schrieb/wrote:
  [blobs] From the point of view of the GPL work called the Linux
  kernel, they're just data.

 Apart from the fact that the data is meant to be executed by some
 computing device, it does not matter if you call it a program or just
 data. The GPL requires the preferred form of the work for making
 modifications to be available for both data and programs.

And heretics must be burned. Oh poor Moglen.

regards,
alexander.

Re: Anti-DMCA clause (was Re: GPL v3 Draft

On 1/23/06, Walter Landry [EMAIL PROTECTED] wrote:
[...]
 A legitimate privacy device may function very much like DRM.  Consider
 classified environments, where you really don't want people to copy
 things around willy-nilly.  Making it hard to copy information won't
 eliminate leaks, but it will reduce them.  I don't see why making a
 system to handle classified documents should be disallowed by the GPL.

http://www.gnu.org/philosophy/stallman-kth.html

Because I don't believe that it's really desirable to have security on
a computer, I shouldn't be willing to help uphold the security regime.

I like also this:

So the result is that we had a smoothly functioning anarchy, and after
my experience there, I'm convinced that that is the best way for people
to live.

Unfortunately the AI lab in that form was destroyed.

Amen.

regards,
alexander.

Re: Distributing GPL software.

On 1/23/06, Raul Miller [EMAIL PROTECTED] wrote:
 On 1/13/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
  Not really. I expect that any court will ignore Moglen's drivel
  like the Judge Saris did in the MySQL case and will interpret
  the GPL as a contract (and in this case as a breach of contractual
  covenant to forbear from the exercise of the statutory right under
  17 USC 109 and instead provide access to source code as the
  copyright owner decrees). My argument is that it's quite easy to
  escape it by NOT entering into agreement.

 In the case Saris ruled on, there was a signed contract.

Regarding what?

regards,
alexander.

Re: Distributing GPL software.

On 1/23/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/23/06, Raul Miller [EMAIL PROTECTED] wrote:
  On 1/13/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
   Not really. I expect that any court will ignore Moglen's drivel
   like the Judge Saris did in the MySQL case and will interpret
   the GPL as a contract (and in this case as a breach of contractual
   covenant to forbear from the exercise of the statutory right under
   17 USC 109 and instead provide access to source code as the
   copyright owner decrees). My argument is that it's quite easy to
   escape it by NOT entering into agreement.
 
  In the case Saris ruled on, there was a signed contract.

 Regarding what?

To set the record straight...

http://www.mysql.com/news-and-events/news/article_75.html

We filed a claim on 11 July 2001 for trademark infringement, breach
of the interim agreement, breach of the GPL license, and unfair and
deceptive trade practices.

Breach of the GPL license claim had really nothing to do with interim
agreement. Judge Saris' reliance on interim agreement was limited to
the claim of trademark infringement, not breach of the GPL.

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

Specifically, MySQL has demonstrated (1) that the agreement
between the parties was an interim agreement that terminated after
August 2000; and (2) that Progress violated Paragraph 6 of that
agreement by using the MySQL trademark after the termination and
by using an unauthorized combination trademark. Continued use of
the trademark will cause MySQL irreparable harm as a matter of law.

That's it regarding interim agreement.

With respect to the General Public License (GPL), MySQL has not
demonstrated a substantial likelihood of success on the merits or
irreparable harm. Affidavits submitted by the parties' experts raise a
factual dispute concerning whether the Gemini program is a derivative
or an independent and separate work under GPL ¶ 2.

regards,
alexander.

Re: Distributing GPL software.

Plonk.

regards,
alexander.

Re: Distributing GPL software.

2006-01-22 Thread Alexander Terekhov

On 1/22/06, Michelle Konzack [EMAIL PROTECTED] wrote:
 Am 2006-01-12 18:51:42, schrieb Alexander Terekhov:

  BTW, I've just checked my records. I have 15 orders of MS winxp64 beta
  downloads on record. 14 copies are still available. Anyone? Just EURO 5
  plus postage cost.

 Too expensive.  :-P

I'm not going to have a price cut. Sold out already. Too late.

regards,
alexander.

Moglen freed blobs (free as in exempted from free as in freedom)

2006-01-21 Thread Alexander Terekhov

And that's in spite of them being nothing but object code which the
GPL code is intended to require, not merely optionally incorporate--is
part of the source code of the work under the GPL and must be released.

Riots arose all over the GNU Republic. The Coalition Death To Unfree
Blobs called for emergency meeting of the GNU Congress to free (as in
impeachment) Eben from vice presidency. The !GNU Movement in
Underground also promised to free Eben (as in I let him go by
Schwarzenegger) for stealing the idea from their yall (yet another
license loophole) 0.6.6.6.oo that shows how to place the !GPL'd code
in a separate thread to be executed on a separate core or a processor.
In recognition of that grandiose theft event, the !GNU Movement in
Underground renamed yall 0.6.6.6.oo into 0.6.6.6.bloby-eben.

The President Stallman refused to make any comments except a short
statement The GNU GPL is /my/ literary work, not Eben's.

regards,
alexander.

On 1/21/06, Marco d'Itri [EMAIL PROTECTED] wrote:
 http://news.zdnet.com/2100-9595_22-6028746-2.html?tag=st.next

 Moglen:

 I would distinguish the blobs from the proprietary drivers in the
 kernel. If the kernel's terms were unambiguously GPL, which they are
 apparently not, (proprietary drivers) would be forbidden. The
 blobs--though they are ethically objectionable to the Free Software
 Foundation, which believes that users ought to know what's running--are
 different because they are separate works when executed running in
 separate computers. From the point of view of the GPL work called the
 Linux kernel, they're just data.

 --
 ciao,
 Marco


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Re: Moglen's all good faith

2006-01-20 Thread Alexander Terekhov

On 1/20/06, Mahesh T. Pai [EMAIL PROTECTED] wrote:
[...]
 3. FSF's ownership  of parts  of the  kernel means FSF  is one  of the
copyright holders in the collective work called the linux kernel.

You apparently don't know what the copyright in a collective work
is and most likely you were mislead by something said by Moglen
(and/or RMS and/or GPL) just like his other mobs. Copyright in a
collective work is separate from copyrights in its constituent
parts because were it not, it would turn collective works into
derivative works which are different beasts under copyright law
notwithstanding misstated definition of derivative work in the GPL.


 BTW, if  you have  problems with statements  made by Eben  Moglen, you
 might be better  off clarifying things with him  direct rather than on
 this list.

My dossier is rapidly growing. Next time you see Moglen tell him
that in the current tempo (driven by the GPLv3) my dossier on his
unprofessional conduct (hopefully leading to the disbarment or
other disciplinary action) is going to reach the critical mass
pretty soon. So he might want to slowdown a bit.

regards,
alexander.

Re: Moglen's all good faith

2006-01-20 Thread Alexander Terekhov

On 1/20/06, Mahesh T. Pai [EMAIL PROTECTED] wrote:
 Alexander Terekhov said on Fri, Jan 20, 2006 at 11:10:54AM +0100,:

   My dossier is rapidly growing. Next time you see Moglen tell him
   that in the current tempo (driven by the GPLv3) my dossier on his
   unprofessional conduct (hopefully leading to the disbarment or
   other disciplinary action) is going to reach the critical mass
   pretty soon. So he might want to slowdown a bit.

 Hmm.. another SCO in the making.

SCO is a product of FSF.

http://www.byte.com/documents/s=7801/byt1055784622054/0616_marshall.html
(SCO Owns Your Computer)

quote

GPL has the same derivative rights concept [as UNIX], according
to Sontag...

/quote

http://www.atnf.csiro.au/people/rgooch/linux/docs/licensing.txt

quote

I asked Richard to comment on several scenarios involving plug-ins
explain whether or not they were in violation of the GPL. So far he
as only addressed one and has effectively admitted a hole. This is
the one I asked that he's responded to:

[A] non-GPL'd plug-in writer writes a plug-in for a non-GPL'd program.
Another author writes a GPL'd program making the first author's
plug-ins compatible with his program. Are now the plug-in author's
plug-ins now retroactively required to be GPL'd?

His response:

No, because the plug-in was not written to extend this program.

/quote

Judge: Okay, but what if all these works were written to extend a
free GPL'd program?

Stallman: Oh, all power to them; all these works would, of course,
fall under the GPL as derivative works (aka derived works).

Judge: Sontag, do you agree with Mr. Stallman?

Sontag: Of course! GPL has the same derivative rights concept as
UNIX. And those IBM's works were written to extend OUR program
and hence, as derivative works, they fall under our licensing
restrictions with respect to confidential treatment. I want up to 50$
billion in damages from IBM, your Honor.

/quote

Now regarding the GPLv3 (draft) and another SCO in the making I'll
quote day5done.

quote

The GPLv3 states:

2. Basic Permissions.

All rights granted under this License are granted for the term of
copyright on the Program, and are irrevocable provided the stated
conditions are met. This License explicitly affirms your unlimited
permission to run the Program. The output from running it is
covered by this License only if the output, given its content,
constitutes a work based on the Program. This License
acknowledges your rights of fair use or other equivalent, as
provided by copyright law.

Anyone see the words This License explicitly affirms your
*unlimited permission* to run the Program?

When you link dynamically to GPL'd code you are running
(executing) the GPL'd Program in every sense of the word. The
linked code is object code that is executed in memory.

Moglen states: We reasserted that code dynamically linked to
GPL code--which the GPL code is intended to require, not merely
optionally incorporate--is part of the source code of the work
under the GPL and must be released.

Since when does unlimited permission mean --is part of the
source code of the work under the GPL and must be released.?

I thought unlimited permission meant unlimited permission.
Hm.

Perhaps Eben Moglen is drooling down his Gerber bib again...

Somehow your proprietary object code being executed in memory
is magically transformed into GPL'd source code. -- Sounds somewhat
like SCO claiming all your code is mine.

Do you suppose the wife and kids also get GPL'd?

/quote

regards,
alexander.

Re: Moglen's all good faith

2006-01-20 Thread Alexander Terekhov

On 1/20/06, Måns Rullgård [EMAIL PROTECTED] wrote:
 Alexander Terekhov [EMAIL PROTECTED] writes:

  On 1/20/06, Måns Rullgård [EMAIL PROTECTED] wrote:
  [...]
   Moglen: In all good faith, I can't tell you. If the kernel were
   pure GPL in its license terms, the answer...would be: You
   couldn't link proprietary video drivers into it whether
   dynamically or statically, and you couldn't link drivers which
   were proprietary in their license terms.
   
  
   I just wonder under what impure GPL license terms do you think Moglen
   thinks the Linux kernel is developed currently (note that the context is
   kernel drivers which has nothing to do with Linus' 
   not-really-an-exception
   for user space).
  
   Any thoughts?
 
  Perhaps this:
 
   Also note that the only valid version of the GPL as far as the kernel
   is concerned is _this_ particular version of the license (ie v2, not
   v2.2 or v3.x or whatever), unless explicitly otherwise stated.
 
  And how does that make it impure GPL? Permission to relicense
  under revised later versions is not part of the GPL license terms.

 Are we talking about what makes sense, or about what Mr Moglen says?

I'm talking about lies (in all good faith)

http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf

The GNU/Linux operating system is probably the best known example
 of a computer program that has been developed using the free software
 model, and is licensed pursuant to the GPL.

either to a judge in Indiana or to the press. Or maybe both.

regards,
alexander.

Re: Ironies abound (was Re: GPL v3 draft)

On 1/19/06, Glenn Maynard [EMAIL PROTECTED] wrote:
[...]
 compatible with itself

The GPL is incompatible with itself.

quote***

A recent press conference of the Free Software Foundation confirmed
the rumors that the GNU General Public License was found to be
incompatible with itself. This newly discovered fact may actually
cause a lot of disorder in the free software world in which most
programs and libraries are licensed under this license.

Richard Stallman, chairman of the FSF, called upon developers to
immediately exempt GPL-licensed software from the GPL, as far as
linking them with GPL programs is concerned. We have already made
sure all GNU software and every other software that is licensed to
the Free Software Foundation would be ad-hoc compatible with itself.
However we need other developers to do the same for their software,
Stallman said.

Eben Moglen, the FSF's attorney outlined the subsequent steps that
his organization will take to overcome this crisis. The first step
would be releasing a Modified General Public License (or MGPL for
short) that will be compatible with the GPL and with itself as well
as with all other licenses that the GPL is already compatible with.
It will be labeled the GPL version 2.1, thus allowing developers to
convert their software to it. He noted that care would be taken to
make sure the upcoming GPL version 3.0 will be compatible with
itself, as well as the MGPL.

For the time being, though, there is an explosion of commentary,
confusion and otherwise bad temper about the newly formed situation.
Eric S. Raymond, the famous Open Source Guru notes: This is one of
the greatest blows to the Open Source world, I have yet encountered.
I have already exempted all of my own software from the GPL in this
regard, but there is a lot of other software out there, and many of
its authors are not very communicative.

Bill Gates, Microsoft's co-founder, on the other hand, seems to
find the situation very amusing: I said times and again, that
viral licenses such as the GPL are a bad idea, and many open-source
advocates disagreed. Now they see that even making sure one's
license is compatible with itself, is hard to do when you open that
can of worms.

The integrity of many software projects whose license is the GPL and
yet contain works licensed by several developers is in jeopardy. The
Linux kernel is a prominent example of such a case. In a post to its
mailing list, Linus Torvalds commented that, in their case, it was
not an issue. My interpretation of the GPL is already quite unusual,
so I'll simply rule that I also interpret the GPL as compatible with
itself.

/quote

regards,
alexander.

***) Posted by Shlomi Fish on Monday April 01

Re: Ironies abound (was Re: GPL v3 draft)

On 1/19/06, Yorick Cool [EMAIL PROTECTED] wrote:
 What is it you need to get rid of trolls? Fire?

A troll hunter.

regards,
alexander.

Re: Ironies abound (was Re: GPL v3 draft)

On 1/19/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/19/06, Glenn Maynard [EMAIL PROTECTED] wrote:
 [...]
  compatible with itself

 The GPL is incompatible with itself. [ ... Shlomi Fish on Monday April 01 ...]

Beside that,

http://www.onlamp.com/pub/a/onlamp/2005/09/22/gpl3.html?page=2

RMS:

-
Even small changes from version 2 of the GPL will result in an incompatible
license. Two slightly different licenses, each saying that modified versions of
a program must be distributed under the same license, are inevitably
incompatible. That's why we suggest that programs permit use of future
versions of the GPL. It is the only way they can migrate.
-

regards,
alexander.

Re: Ironies abound (was Re: GPL v3 draft)

Hands Off Yorick!

On 1/19/06, MJ Ray [EMAIL PROTECTED] wrote:
 Yorick Cool [EMAIL PROTECTED]
  What is it you need to get rid of trolls? Fire?

 A clue-by-four, the same as used for top-post/whole-quoters.

 (ObSerious: please stop feeding the troll, please follow
 the code of conduct and no top-posting. That means you.)

 --
 MJR/slef
 My Opinion Only: see http://people.debian.org/~mjr/
 Please follow http://www.uk.debian.org/MailingLists/#codeofconduct


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regards,
alexander.

Re: Question on GPL compliance

On 1/19/06, Daniel Carrera [EMAIL PROTECTED] wrote:
[...]
 Alright, thanks. I guess we'll ship two CDs then. I am very risk adverse
 and I don't want to worry about the sources.

Even if you feel under obligation to do what the GPL decrees, your
customers can of course make a promise not to come back to you
later asking for CDs with sources when they expressly don't want
that accompanied CD.

regards,
alexander.

Moglen's all good faith

Hey legals, enjoy Moglen speaking on one-way street, linking, etc.

http://news.com.com/Defender+of+the+GPL/2008-1082_3-6028495.html

Now,


One specific area where the linking question arises is in the Linux kernel,
where proprietary video drivers loaded are loaded as modules. Another one
might be the use of a network driver that relies on proprietary firmware that
is loaded from an operating system. (Such firmware, sometimes called
blobs, are strings of hexadecimal digits loaded from the operating
system kernel into the hardware device to enable it to run.)

Moglen: In all good faith, I can't tell you. If the kernel were pure GPL in
its license terms, the answer...would be: You couldn't link proprietary
video drivers into it whether dynamically or statically, and you couldn't
link drivers which were proprietary in their license terms.


I just wonder under what impure GPL license terms do you think Moglen
thinks the Linux kernel is developed currently (note that the context is
kernel drivers which has nothing to do with Linus' not-really-an-exception
for user space).

Any thoughts?

TIA.

regards,
alexander.

Re: GPL v3 Draft

On 1/19/06, Glenn Maynard [EMAIL PROTECTED] wrote:
[...]
 (Of course, laws and courts have free reign to interpret words in any
 way that suits their agenda, so effectively probably really means
 pretends to ...)

It meansin effect here.

regards,
alexander.

Re: Moglen's all good faith

On 1/20/06, Måns Rullgård [EMAIL PROTECTED] wrote:
[...]
  Moglen: In all good faith, I can't tell you. If the kernel were pure GPL in
  its license terms, the answer...would be: You couldn't link proprietary
  video drivers into it whether dynamically or statically, and you couldn't
  link drivers which were proprietary in their license terms.
  
 
  I just wonder under what impure GPL license terms do you think Moglen
  thinks the Linux kernel is developed currently (note that the context is
  kernel drivers which has nothing to do with Linus' not-really-an-exception
  for user space).
 
  Any thoughts?

 Perhaps this:

  Also note that the only valid version of the GPL as far as the kernel
  is concerned is _this_ particular version of the license (ie v2, not
  v2.2 or v3.x or whatever), unless explicitly otherwise stated.

And how does that make it impure GPL? Permission to relicense
under revised later versions is not part of the GPL license terms.

regards,
alexander.

Re: Anti-DMCA clause (was Re: GPL v3 Draft

On 1/20/06, Glenn Maynard [EMAIL PROTECTED] wrote:
[...]
 (Unfortunately, I don't speak that language ...)

Hey legals, drop this link

http://www.m-w.com/cgi-bin/dictionary?va=effectively

to poor Maynard.

regards,
alexander.

Re: Moglen's all good faith

On 1/20/06, Andrew Donnellan [EMAIL PROTECTED] wrote:
 There are some (bad) parts in the linux kernel that are not GPL, and
 even some parts which could be considered non-free. Look through the
 individual file copyright notices.

Sorry, but under Moglen's own theory, it is enough to have a tiny piece
of GNU GPL'd code to make the entire program (in this case kernel
as a whole, user space aside for a moment [RMS includes that as well])
GNU GPL'd. And, BTW, how come that the FSF's compliance lab didn't
purify the kernel of *GNU*/Linux?

regards,
alexander.

Re: Moglen's all good faith

On 1/20/06, Andrew Donnellan [EMAIL PROTECTED] wrote:
[...]
  GNU GPL'd. And, BTW, how come that the FSF's compliance lab didn't
  purify the kernel of *GNU*/Linux?

 Because FSF doesn't own any copyrights in Linux - it doesn't contribute.

Well,

quote author=Moglen

The Foundation notes that despite the alarmist statements SCO's
employees have made, the Foundation has not been sued, nor has
SCO, despite our requests, identified any work whose copyright the
Foundation holds-including all of IBM's modifications to the kernel
for use with IBM's S/390 mainframe computers, assigned to the
Foundation by IBM--that SCO asserts infringes its rights in any
way.

/quote

So how come that the FSF's compliance lab didn't purify the
kernel of *GNU*/Linux for IBM mainframes at least?

regards,
alexander.

Re: GPL v3 Draft

On 1/18/06, Joe Buck [EMAIL PROTECTED] wrote:
 On Wed, Jan 18, 2006 at 03:34:24AM +0100, Alexander Terekhov wrote:
  On 1/18/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
   On 1/18/06, Joe Buck [EMAIL PROTECTED] wrote:
On Wed, Jan 18, 2006 at 01:48:11AM +0100, Alexander Terekhov wrote:
 Care to post a link to rules of New York?
   
It's not up to me.  You charged Moglen with offenses, you back it up.
  
   In this type of offence it sorta goes the other way around: let Moglen 
   back
   up some of his fraudulent legal claims like the GPL is not a contract 
   (no
   need to upper case disclaimers aside for a moment).
 
  Here's an example.
 
  http://groups.google.com/group/misc.int-property/msg/af75f708f55b4f5a
 
  (PTRAVEL is a practicing IP lawyer and litigator)

 So this guy disagrees with Moglen, therefore Moglen is wrong and a fraud,
 based on what?  His credentials?  Moglen is also a practicing IP lawyer as
 well as a law professor.

Moglen is a liar. And Stallman too.

http://xfree86.org/pipermail/forum/2004-March/004301.html
http://xfree86.org/pipermail/forum/2004-April/004306.html
http://xfree86.org/pipermail/forum/2004-April/004308.html
http://xfree86.org/pipermail/forum/2004-April/004309.html
http://xfree86.org/pipermail/forum/2004-April/004321.html
http://xfree86.org/pipermail/forum/2004-April/004353.html
http://xfree86.org/pipermail/forum/2004-April/004358.html
http://xfree86.org/pipermail/forum/2004-April/004384.html

regards,
alexander.

Re: GPL v3 Draft

On 1/18/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/18/06, Joe Buck [EMAIL PROTECTED] wrote:
  On Wed, Jan 18, 2006 at 03:34:24AM +0100, Alexander Terekhov wrote:
   On 1/18/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
On 1/18/06, Joe Buck [EMAIL PROTECTED] wrote:
 On Wed, Jan 18, 2006 at 01:48:11AM +0100, Alexander Terekhov wrote:
  Care to post a link to rules of New York?

 It's not up to me.  You charged Moglen with offenses, you back it up.
   
In this type of offence it sorta goes the other way around: let Moglen 
back
up some of his fraudulent legal claims like the GPL is not a contract 
(no
need to upper case disclaimers aside for a moment).
  
   Here's an example.
  
   http://groups.google.com/group/misc.int-property/msg/af75f708f55b4f5a
  
   (PTRAVEL is a practicing IP lawyer and litigator)
 
  So this guy disagrees with Moglen, therefore Moglen is wrong and a fraud,
  based on what?  His credentials?  Moglen is also a practicing IP lawyer as
  well as a law professor.

 Moglen is a liar. And Stallman too.

 http://xfree86.org/pipermail/forum/2004-March/004301.html
 http://xfree86.org/pipermail/forum/2004-April/004306.html
 http://xfree86.org/pipermail/forum/2004-April/004308.html
 http://xfree86.org/pipermail/forum/2004-April/004309.html
 http://xfree86.org/pipermail/forum/2004-April/004321.html
 http://xfree86.org/pipermail/forum/2004-April/004353.html
 http://xfree86.org/pipermail/forum/2004-April/004358.html
 http://xfree86.org/pipermail/forum/2004-April/004384.html

Beside that,

quote
Licenses are not contracts: the work's user is obliged to
remain within the bounds of the license not because she
voluntarily promised, but because she doesn't have any right
to act at all except as the license permits.

http://www.gnu.org/philosophy/enforcing-gpl.html

is simply legal nonsense.

**
Here's an email exchange with RMS:

I assume, however, that at least some people want the GPL
to be binding--nothing can make it binding except a claim of
contract.

http://lists.essential.org/upd-discuss/msg00131.html

-- the respondent's email address resolves to:
MICHAEL H. DAVIS, (Professor of Law) Cleveland State
University. Education: Occidental College (B.A.,1967);
Hofstra Law School (J.D., 1975); Harvard Law School (LL.M.,
1979).

**
Perhaps further consideration should be given to:

(A``non-contractual copyright permission'' would be some
sort of license that does not involve a contract I
suppose, but that is not a well defined term.)

http://lists.softwarelibero.it/pipermail/diritto/2002-Februa
ry/000641.html

-- the respondent's email address resolves to:
PETER D. JUNGER
Professor of Law Emeritus
Case Western Reserve University
College: Harvard College, A.B. 1955
Law School: Harvard Law School, LL.B. (magna cum laude)
1958

**
How about this:

The GPL IS a contract. Calling it a license
simply describes the type of contract it is.

http://www.mail-archive.com/license-discuss at openso
urce.org/msg01522.html

-- the respondent's email address resolves to:
ROD DIXON J.D. LL.M.
Visiting Assistant Professor of Law, Rutgers University
School of Law, Camden, New Jersey, Fall 1999 to present.
EDUCATION: LL.M. (with Distinction), Georgetown
University Law Center, 1998. J.D., George Washington
University Law School, 1992. M.A., University of
Pittsburgh, Faculty of Arts and Sciences, 1986. B.A.,
University of Pittsburgh, College of Arts and Sciences,
1984.

**

Doesn't anyone outside the academic legal community harbor
any suspicion that the GPL is broken? Eben Moglen has propounded
specious legal theories without ever citing relevant case, statute
or other legal authority supporting his stance on the validity
of the GPL and his claim that it is not a(n) (invalid) contract.

Moglen makes extraordinary claims about the GPL, so why doesn't
he come forward with the appropriate legal citations? Moglen is
a J.D. with a Ph.D. in history and not an LL.M. He would not even
be accepted as qualified for Professorship at many institutions.
What qualifies his word alone as legal authority?

/quote

regards,
alexander.

Re: object code in the GPL and printed copies

Object code is a well established term. GNUspeak is irrelevant.

The Copyright Act defines a computer program asa set of
statements or instructions to be used directly or indirectly in
a computer in order to bring about a certain result.  17 U.S.C.
§ 101. Computer programs can be expressed in either source
code or object code. Source code is the computer program
code as the programmer writes it, using a particular programming
language. Compendium of Copyright Office Practices,
§ 321.01. Source code is a high level language that people can
readily understand. Object code is the representation of the
program in machine language [binary] . . . which the computer
executes. Id. at § 321.02. Source code usually must be
compiled, or interpreted, into object code before it can be executed
by a computer. Object code can also be decompiled into
source code. Source code and object code are 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. Id. at § 321.03.
However, source code created by decompiling object code
will not necessarily be identical to the source code that was
compiled to create the object code.

regards,
alexander.

Re: GPL v3 Draft

On 1/18/06, Frank Küster [EMAIL PROTECTED] wrote:
[...]
 http://www.jbb.de/urteil_lg_muenchen_gpl.pdf, an english translation at
 http://www.jbb.de/judgment_dc_munich_gpl.pdf

I know. See

http://lists.debian.org/debian-legal/2006/01/msg00088.html

Pls read that message in its entirety (and also follow the links and
read the linked stuff as well, and do it recursively ;-) ) before starting
writing a reply (if any).

As for US,

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

The standard for PI under copyright infringement claim includes presumption
of irreparable harm. The judge didn't apply it (and used a contract standard
instead). Note also portion breach of contract claim and didn't cure the
breach wording (you just can't cure a copyright violation). Finally, that
decision is tagged as Nature of Suit: 190 and that's neither 820/840 nor
190/820/840 (all three).

http://pacer.psc.uscourts.gov/documents/natsuit.pdf

190 is CONTRACT/Other Contract
820 is PROPERTY RIGHTS/Copyrights
840 is PROPERTY RIGHTS/Trademark

regards,
alexander.

P.S. I must say that I disgust Welte's efforts for his legal ignorance and
because his attorneys (the gang from ifross/jbb) try to advance the idiotic
theory under which the GPL'd works are exempted from the doctrine of
exhaustion (equivalent of 17 USC 109 in Europe).

Re: object code in the GPL and printed copies

Plonk.

regards,
alexander.

Re: object code in the GPL and printed copies

On 1/18/06, Nathanael Nerode [EMAIL PROTECTED] wrote:
[...]
 Well, the draft for GPL v3 says:
 Object code means any non-source version of a work.
 Everyone seems to like this.
 So in GPL v3 it will be very clear that a printed copy is object code.

How fascinating. The courts will enjoy this amusing insanity too.

regards,
alexander.

P.S. Let the press know, Nerode. You can make some $$$.

Re: GPL v3 Draft

On 1/18/06, Joe Buck [EMAIL PROTECTED] wrote:
 On Wed, Jan 18, 2006 at 11:35:55AM +0100, Alexander Terekhov wrote:
  Moglen is a liar. And Stallman too.

 *plonk*

And how long is your plonk? Longer than Pool's one?

regards,
alexander.

Re: Clause 7d (was Re: Ironies abound (was Re: GPL v3 draft)

On 1/18/06, Matthew Palmer [EMAIL PROTECTED] wrote:
[...}
 What do other people think of this?

I think the GPLv3 is great. It's perfect impotence pill for (ordinary
contractual) stuff like OSL, IPL, CPL and whatnot the FSF is going to
deem now compatible.

The OSI approval (I just pray that someone submits it) will be fun.

regards,
alexander.

Re: object code in the GPL and printed copies

On 1/18/06, Pedro A.D.Rezende [EMAIL PROTECTED] wrote: ...

Hey, I'm the troll here. Go away.

Seriously (sort of), I just wonder how you define a SEQUENCE, Prof.

regards,
alexander.

P.S. author's right has really little to do with distribution. First Sale,
y'know.

Re: object code in the GPL and printed copies

On 1/19/06, Alexander Terekhov [EMAIL PROTECTED] wrote:
 On 1/18/06, Pedro A.D.Rezende [EMAIL PROTECTED] wrote: ...

 Hey, I'm the troll here. Go away.

 Seriously (sort of), I just wonder how you define a SEQUENCE, Prof.

I guess our Prof has a lecture.

Just to save Prof's time: once you add concurrency into play (and
copyright concurrent computer programs), an ordered set of
instructions becomes pretty unordered.

regards,
alexander.

Re: GPL v3 Draft

On 1/17/06, Don Armstrong [EMAIL PROTECTED] wrote:
[...]
 Eben had a really humorous explanation, which I will attempt to
 paraphrase from my (impressively imperfect) memory:

No lawyer knows exactly why we have been shouting at eachother for
the past 50(?) years; but since everyone is shouting, everyone
thought there must be some reason. I've decided to take take the
initiative and return to mixed case, ending the endless shouting
match.

Yeah. So legal mandates like, for example,

http://www.courts.state.va.us/text/scv/amendments/rule_71_75_SC.html


When the communication is in writing, the disclaimer shall be in bold
type face and uppercase letters in a font size that is at least as large
as the largest text used


mean nothing for Moglen. I'm not surprised. Moglen is a blatant
violator of rules like


A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated
with the lawyer or the firm, use or participate in the use of any form of
public communication if such communication contains a false,
fraudulent, misleading, or deceptive statement or claim.


to begin with.

regards,
alexander.

Re: Distributing GPL software.

On 1/17/06, olive [EMAIL PROTECTED] wrote:
[...]
 In particular read section 4 of the GPL.

It says You are not required to accept this License, since you
have not signed it. And I agree that you are not require to accept
this License (noting that signing a license agreement is not the
only way to accept a license agreement). But the rest of this
sections is nothing but fraudulent misstatements of the copyright
act (regarding rights of owners of computer program copies lawfully
made) and the contract laws governing breach of contractual
covenants.

regards,
alexander.

Re: Distributing GPL software.

On 1/17/06, olive [EMAIL PROTECTED] wrote:

[... not accepting the GPL ...]

 So in this case you cannot make copies

You can download copies without accepting the GPL.

 (nor modifying) of the software anymore.

And adapt/modify computer programs and make additional copies
under 17 USC 117 from copies that you've downloaded without
accepting the GPL.

 I do not think you can agree to the GPL just for a
 limited number of copies of the software.

Sure you can. In addition, in general you can even accept
agreements and deliberately breach them. The contract laws
recognize a concept called efficient breach which encourages
breach of a contract if it's economically efficient to do so.
Compliance with a contract is almost always voluntary -- if
you choose not to comply, then you don't have to. You merely
have to compensate the non-breaching party for his expectancy
interest.

http://sunsite.queensu.ca/localov/dhoucc97/law2.htm
http://www.jus.unitn.it/cardozo/review/Contract/Alpa-1995/alpa2.html

regards,
alexander.

Re: GPL v3 Draft