Re: Versa trashes the GPL as well

2010-05-04 Thread David Kastrup
Alexander Terekhov terek...@web.de writes:

 the alleged license at issue in this case and/or certain provisions
 contained therein are illegal, unconscionable and barred by public
 policy as well as by statutory and case law.

They'll have a fun time

a) proving that statement

b) telling the court what other permission short of the alleged
   license they have for copying and distribution.

That's pretty much the usual clueless first response.

 Exactly.

Which is why it is hailed by our usual clueless first responders.  Now
we'll just have to wait for the huzzahs when both parties file for
dismissal in the course of which the sources are made available under
the GPL (never mind how illegal, unconscionable and whatever else that
would be).  Or until the court actually issues a ruling, and we'll get
the usual hissy fits here about drunken judges and claims that they
are in conflict with the Superior Court or whatever other histrionics we
are used to seeing from our resident cranks.

-- 
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Re: Versa trashes the GPL as well

2010-05-04 Thread Chris Ahlstrom
David Kastrup pulled this Usenet boner:

 Alexander Terekhov terek...@web.de writes:

Have you ever timed these rjack/terekhov irruptions to determine
if they coincide with any natural cycles?

-- 
I'll burn my books.
-- Christopher Marlowe
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:

Alexander Terekhov terek...@web.de writes:

the alleged license at issue in this case and/or certain 
provisions contained therein are illegal, unconscionable and barred

 by public policy as well as by statutory and case law.


They'll have a fun time

a) proving that statement

b) telling the court what other permission short of the alleged 
license they have for copying and distribution.




a) The court will immediately find the GPL unenforceable because of the
preemption doctrine established by 17 USC sec. 301(a).

b) They'll tell the court that the doctrine of promissory estoppel applies.

Unlike many GNUtians, the court won't pretend that neither doctrine exists.


That's pretty much the usual clueless first response.


Mindless denial is always a GNUtians first response.

Sincerely,
RJack :)
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

Chris Ahlstrom wrote:

David Kastrup pulled this Usenet boner:


Alexander Terekhov terek...@web.de writes:


Have you ever timed these rjack/terekhov irruptions to determine if
they coincide with any natural cycles?



Actually, there are certain natural cycles of moaning and grunting that
GNUtians express when RJack/Terekhov erupt in them.

Bend over Chris and feel the joy.

Sincerely,
RJack :)
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Re: Versa trashes the GPL as well

2010-05-04 Thread Alexander Terekhov

RJack wrote:
[...]
 b) They'll tell the court that the doctrine of promissory estoppel applies.

That's Versa's tenth defense.

TENTH AFFIRMATIVE DEFENSE
(ESTOPPEL)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred by the doctrine of estoppel.

I also like

FOURTEENTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred because any and all obligations Defendant may have had under the
alleged license agreement at issue in this case were excused by the
material breaches of the agreement by Plaintiffs.

SIXTEENTH AFFIRMATIVE DEFENSE
(LACK AND/OR FAILURE OF CONSIDERATION)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred because Defendant’s performance of any obligations with respect
to the alleged license at issue in this action have been excused by lack
and/or material failure of consideration on the part of Plaintiffs with
respect to that license.

Oh poor SFLC... 

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: Versa trashes the GPL as well

2010-05-04 Thread David Kastrup
Alexander Terekhov terek...@web.de writes:

 RJack wrote:
 [...]
 b) They'll tell the court that the doctrine of promissory estoppel applies.

 That's Versa's tenth defense.

 TENTH AFFIRMATIVE DEFENSE
 (ESTOPPEL)

 On information and belief, Defendant alleges that Plaintiffs’ claims are
 barred by the doctrine of estoppel.

Yeah, that one is hilarious as well.  Dear court, how could we assume
that we had license conditions to heed when making use of a license?
They promised we could use their software under GPL, that certainly must
be enough to stop them from asking us to heed it.

We'll see how much of the defendants beliefs survives in court.

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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:


We'll see how much of the defendants beliefs survives in court.


You betch'a. No more voluntary dismissals. That's all that real folks
have ever asked for -- a court ruling concerning the GPL on the merits.

So, hopefully, we'll really see.

Sincerely,
RJack :)

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Re: Versa trashes the GPL as well

2010-05-04 Thread Alexander Terekhov

David Kastrup wrote:
 
 Alexander Terekhov terek...@web.de writes:
 
  RJack wrote:
  [...]
  b) They'll tell the court that the doctrine of promissory estoppel applies.
 
  That's Versa's tenth defense.
 
  TENTH AFFIRMATIVE DEFENSE
  (ESTOPPEL)
 
  On information and belief, Defendant alleges that Plaintiffs’ claims are
  barred by the doctrine of estoppel.
 
 Yeah, that one is hilarious as well.  Dear court, how could we assume
 that we had license conditions to heed when making use of a license?
 They promised we could use their software under GPL, that certainly must
 be enough to stop them from asking us to heed it.

Asking us to heed it is a contract claim, not copyright infringement
claim you silly.

By filing copyright infringement claim the licensor materially breaches
his obligation/consideration (i.e. obligation not to sue for
infringment) in a license agreement.

FOURTEENTH AFFIRMATIVE DEFENSE
(MATERIAL BREACH)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred because any and all obligations Defendant may have had under the
alleged license agreement at issue in this case were excused by the
material breaches of the agreement by Plaintiffs.

SIXTEENTH AFFIRMATIVE DEFENSE
(LACK AND/OR FAILURE OF CONSIDERATION)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred because Defendant’s performance of any obligations with respect
to the alleged license at issue in this action have been excused by lack
and/or material failure of consideration on the part of Plaintiffs with
respect to that license.

Oh poor SFLC... 

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
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(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: Versa trashes the GPL as well

2010-05-04 Thread David Kastrup
RJack u...@example.net writes:

 David Kastrup wrote:

 We'll see how much of the defendants beliefs survives in court.

 You betch'a. No more voluntary dismissals. That's all that real folks
 have ever asked for -- a court ruling concerning the GPL on the merits.

You won't see that this time either.  If we make it through an actual
court ruling, the outcome will be either that there was copying without
permission (which is a ruling on the merits of copyright), or that the
defendants would do better to come into compliance with any purported
license they claim to have been given, GPL or not.

Or a defendant can show that he is not in fact distributing the
software.

 So, hopefully, we'll really see.

The topic will be copyright.  The GPL is what helps the defendants out
of the court, not what brings them into it.

So it is not likely there will be much to see.

-- 
David Kastrup
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:

Alexander Terekhov terek...@web.de writes:


David Kastrup wrote:

Alexander Terekhov terek...@web.de writes:


RJack wrote: [...]

b) They'll tell the court that the doctrine of promissory
estoppel applies.

That's Versa's tenth defense.

TENTH AFFIRMATIVE DEFENSE (ESTOPPEL)

On information and belief, Defendant alleges that Plaintiffs’
claims are barred by the doctrine of estoppel.

Yeah, that one is hilarious as well.  Dear court, how could we
assume that we had license conditions to heed when making use of
a license? They promised we could use their software under GPL,
that certainly must be enough to stop them from asking us to heed
it.

Asking us to heed it is a contract claim, not copyright
infringement claim you silly.

By filing copyright infringement claim the licensor materially
breaches his obligation/consideration (i.e. obligation not to sue
for infringment) in a license agreement.


A licensor has an obligation not to sue for infringement when the 
license terms are breached?


Breached? BREACHED? As in breach of contract as contrasted with
copyright infringement?

Sincerely,
RJack :)
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Re: Versa trashes the GPL as well

2010-05-04 Thread David Kastrup
RJack u...@example.net writes:

 David Kastrup wrote:
 Alexander Terekhov terek...@web.de writes:

 On information and belief, Defendant alleges that Plaintiffs’
 claims are barred by the doctrine of estoppel.

 Yeah, that one is hilarious as well.  Dear court, how could we
 assume that we had license conditions to heed when making use of a
 license? They promised we could use their software under GPL, that
 certainly must be enough to stop them from asking us to heed it.

 We'll see how much of the defendants beliefs survives in court.

 Once the GPL is invalidated, promissory estoppel will allow some
 proprietary company to improve Linux and turn it into a real operating
 system. Microsoft hates the thought that folks will understand the GPL
 is unenforceable. That's the reason Microsoft embraced the GPL -- it
 suppressed new competition.

 Perhaps the Linux kernel will continue to be improved under a free
 (free as in freedom) license such as BSD or Apache.

You should keep away from the keyboard during your wet dreams.

-- 
David Kastrup
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:

RJack u...@example.net writes:


David Kastrup wrote:

Alexander Terekhov terek...@web.de writes:

On information and belief, Defendant alleges that Plaintiffs’ 
claims are barred by the doctrine of estoppel.
Yeah, that one is hilarious as well.  Dear court, how could we 
assume that we had license conditions to heed when making use of

a license? They promised we could use their software under GPL,
that certainly must be enough to stop them from asking us to heed
it.

We'll see how much of the defendants beliefs survives in court.
Once the GPL is invalidated, promissory estoppel will allow some 
proprietary company to improve Linux and turn it into a real

operating system. Microsoft hates the thought that folks will
understand the GPL is unenforceable. That's the reason Microsoft
embraced the GPL -- it suppressed new competition.

Perhaps the Linux kernel will continue to be improved under a free 
(free as in freedom) license such as BSD or Apache.


You should keep away from the keyboard during your wet dreams.



Never happen. Your pear shaped, delectable butt is always on one's
mind. Arrrgh...

Sincerely,
RJack :)


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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 7:09 AM, RJack wrote:

a) The court will immediately find the GPL unenforceable because of the
preemption doctrine established by 17 USC sec. 301(a).


Preemption has nothing to do with the GPL, since this is
a case of normal copyright infringement brought under the
federal copyright law.


b) They'll tell the court that the doctrine of promissory estoppel applies.


They may tell the court anything they like, but promissory
estoppel does not apply to GPL-covered code since the license
clearly spells out the conditions under which the code may be
copied and distributed.
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

Hyman Rosen wrote:

On 3/9/2010 7:09 AM, RJack wrote:

a) The court will immediately find the GPL unenforceable because of
the preemption doctrine established by 17 USC sec. 301(a).


Preemption has nothing to do with the GPL, since this is a case of
normal copyright infringement brought under the federal copyright
law.


Uhhh. What's abnormal copyright infringement?




b) They'll tell the court that the doctrine of promissory estoppel
 applies.


They may tell the court anything they like, but promissory estoppel
does not apply to GPL-covered code since the license clearly spells
out the conditions under which the code may be copied and
distributed.


Uhhh. Do you mean the preempted covenants that you incorrectly
refer to as conditons? Preempted is preempted. What do conditions
have to do with anything?

Sincerely,
RJack :)

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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 7:28 AM, Alexander Terekhov wrote:

Oh poor SFLC...


You appear to have very strange beliefs about the legal
system. Aside from your general misunderstanding of
copyright law, you seem to believe that answers and
counterclaims have some magical power merely by being
stated. Proper lawyering always involves throwing up
every possible defense to a suit, plausible or not. If
nothing else, it makes extra work for the other side,
plus any claim not asserted can't be raised later, so
it's important to get everything out immediately.

To an anti-GPL crank, the sun rising in the East is
proof of the failure of the GPL.
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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 8:45 AM, RJack wrote:

Once the GPL is invalidated


http://www.cafc.uscourts.gov/opinions/08-1001.pdf
Copyright holders who engage in open source licensing have
the right to control the modification and distribution of
copyrighted material. As the Second Circuit explained in
Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the
unauthorized editing of the underlying work, if proven,
would constitute an infringement of the copyright in that
work similar to any other use of a work that exceeded the
license granted by the proprietor of the copyright.
Copyright licenses are designed to support the right to
exclude; money damages alone do not support or enforce that
right. The choice to exact consideration in the form of
compliance with the open source requirements of disclosure
and explanation of changes, rather than as a dollar-
denominated fee, is entitled to no less legal recognition.
Indeed, because a calculation of damages is inherently
speculative, these types of license restrictions might well
be rendered meaningless absent the ability to enforce through
injunctive relief.

You've already lost.
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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 9:11 AM, RJack wrote:

Uhhh. What's abnormal copyright infringement?


When there are other defenses possible under federal law,
such as fair use or time shifting or reverse engineering.
Normal copyright infringement is simply unauthorized
copying and distribution with nothing else involved.


Uhhh. Do you mean the preempted covenants that you incorrectly
refer to as conditons? Preempted is preempted. What do conditions
have to do with anything?


GPL cases involve simple copyright infringement caused
by copying and distributing without adhering to the
conditions of the license. There is no preemption
involved, because preemption merely states that all
copyright comes from federal law, and it is federal
law which disallows copying and distribution without
permission. The conditions of the GPL are conditions,
just as the conditions of the Artistic License are
conditions:
http://www.cafc.uscourts.gov/opinions/08-1001.pdf
The Artistic License states on its face that the
document creates conditions: The intent of this
document is to state the _conditions_ under which
a Package may be copied. (Emphasis added.) The
Artistic License also uses the traditional language
of conditions by noting that the rights to copy,
modify, and distribute are granted provided that
the conditions are met. Under California contract
law, provided that typically denotes a condition.
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Re: Versa trashes the GPL as well

2010-05-04 Thread Alexander Terekhov

Hyman Rosen wrote:
 
 On 3/9/2010 9:11 AM, RJack wrote:
  Uhhh. What's abnormal copyright infringement?
 
 When there are other defenses possible under federal law,
 such as fair use or time shifting or reverse engineering.
 Normal copyright infringement is simply unauthorized
 copying and distribution with nothing else involved.
 
  Uhhh. Do you mean the preempted covenants that you incorrectly
  refer to as conditons? Preempted is preempted. What do conditions
  have to do with anything?
 
 GPL cases involve simple copyright infringement caused
 by copying and distributing without adhering to the
 conditions of the license. There is no preemption
 involved, because preemption merely states that all
 copyright comes from federal law, and it is federal
 law which disallows copying and distribution without
 permission. The conditions of the GPL are conditions,
 just as the conditions of the Artistic License are
 conditions:
 http://www.cafc.uscourts.gov/opinions/08-1001.pdf
  The Artistic License states on its face that the
  document creates conditions: The intent of this
  document is to state the _conditions_ under which
  a Package may be copied. (Emphasis added.) The

Q: If you call a tail a leg, how many legs has a dog? Five? 

Judge HOCHBERG: Of course five.

Abraham Lincoln: No, calling a tail a leg doesn't make it a leg! 

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 9:40 AM, Alexander Terekhov wrote:

Q: If you call a tail a leg, how many legs has a dog? Five?


When a court does the calling, yes.
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

Hyman Rosen wrote:

On 3/9/2010 8:45 AM, RJack wrote:

Once the GPL is invalidated


http://www.cafc.uscourts.gov/opinions/08-1001.pdf Copyright holders
who engage in open source licensing have the right to control the
modification and distribution of copyrighted material. As the Second
Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976),
the unauthorized editing of the underlying work, if proven, would
constitute an infringement of the copyright in that work similar to
any other use of a work that exceeded the license granted by the
proprietor of the copyright. Copyright licenses are designed to
support the right to exclude; money damages alone do not support or
enforce that right. The choice to exact consideration in the form of 
compliance with the open source requirements of disclosure and

explanation of changes, rather than as a dollar- denominated fee, is
entitled to no less legal recognition. Indeed, because a calculation
of damages is inherently speculative, these types of license
restrictions might well be rendered meaningless absent the ability to
enforce through injunctive relief.

You've already lost.


You might as well cite to the law of Zimbabwe Hymen. The case is filed
in the Second Circuit. The CAFC has no precedental value anywhere in the
federal system. I hope and pray that the SFLC cites to the CAFC. It will
be a real treat to see a federal district court judge rolling on the
floor laughing before dismissing the case.


In a recent case in the Southern District of New York, Yurman Studio,
Inc. v. Castaneda, 07 Civ. 1241 (SAS)(S.D.N.Y. November 19, 2008),
District Judge Shira A. Scheindlin reminds us of the well settled
principle that At the end of the day, 'statutory damages should bear
some relation to actual damages suffered' [citing RSO Records v. Peri,
596 F.Supp. 849,862 (SDNY 1984); New Line Cinema Corp. v. Russ Berrie 
Co., 161 F.Supp.2d 293,303 (SDNY 2001); 4 Nimmer Sec. 14.04[E][1] at
14-90(2005)] and 'cannot be divorced entirely from economic reality'
http://recordingindustryvspeople.blogspot.com/2008_11_01_archive.html#1456008093780326775


Sincerely,
RJack :)








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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 10:00 AM, RJack wrote:

The case is filed in the Second Circuit.

 The CAFC has no precedental value anywhere in the

federal system.


The reasoning will apply universally, since it is correct.


At the end of the day, 'statutory damages should bear
some relation to actual damages suffered'


But infringing defendants will be enjoined from continuing to
infringe regardless of the monetary value of damage suffered
by the plaintiffs.
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Re: Versa trashes the GPL as well

2010-05-04 Thread David Kastrup
RJack u...@example.net writes:

 Hyman Rosen wrote:
 On 3/9/2010 8:45 AM, RJack wrote:
 Once the GPL is invalidated

 http://www.cafc.uscourts.gov/opinions/08-1001.pdf

 You've already lost.

 You might as well cite to the law of Zimbabwe Hymen. The case is filed
 in the Second Circuit. The CAFC has no precedental value anywhere in
 the federal system. I hope and pray that the SFLC cites to the
 CAFC. It will be a real treat to see a federal district court judge
 rolling on the floor laughing before dismissing the case.

Tsktsktsk.  Remember: stay off the keyboard when having wet dreams.

-- 
David Kastrup
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:

RJack u...@example.net writes:


Hyman Rosen wrote:

On 3/9/2010 8:45 AM, RJack wrote:

Once the GPL is invalidated

http://www.cafc.uscourts.gov/opinions/08-1001.pdf

You've already lost.

You might as well cite to the law of Zimbabwe Hymen. The case is
filed in the Second Circuit. The CAFC has no precedental value
anywhere in the federal system. I hope and pray that the SFLC cites
to the CAFC. It will be a real treat to see a federal district
court judge rolling on the floor laughing before dismissing the
case.


Tsktsktsk.  Remember: stay off the keyboard when having wet dreams.



YOU just keep your pants pulled up. Sweetie.

Sincerely,
RJack :)
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Re: Versa trashes the GPL as well

2010-05-04 Thread Hyman Rosen

On 3/9/2010 10:16 AM, RJack wrote:

Since the defendants aren't infringing under Second Circuit
precedental law there will be no damages at all.


The defendants are infringing by copying and distributing
copyrighted computer programs without permission.
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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

David Kastrup wrote:

Alexander Terekhov terek...@web.de writes:


RJack wrote: [...]

b) They'll tell the court that the doctrine of promissory
estoppel applies.

That's Versa's tenth defense.

TENTH AFFIRMATIVE DEFENSE (ESTOPPEL)

On information and belief, Defendant alleges that Plaintiffs’
claims are barred by the doctrine of estoppel.


Yeah, that one is hilarious as well.  Dear court, how could we
assume that we had license conditions to heed when making use of a
license? They promised we could use their software under GPL, that
certainly must be enough to stop them from asking us to heed it.

We'll see how much of the defendants beliefs survives in court.


Once the GPL is invalidated, promissory estoppel will allow some
proprietary company to improve Linux and turn it into a real operating
system. Microsoft hates the thought that folks will understand the GPL
is unenforceable. That's the reason Microsoft embraced the GPL -- it
suppressed new competition.

Perhaps the Linux kernel will continue to be improved under a free (free
as in freedom) license such as BSD or Apache.

Sincerely,
RJack :)

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Re: Versa trashes the GPL as well

2010-05-04 Thread RJack

Hyman Rosen wrote:

On 3/9/2010 10:16 AM, RJack wrote:
Since the defendants aren't infringing under Second Circuit 
precedental law there will be no damages at all.


The defendants are infringing by copying and distributing copyrighted
computer programs without permission.


Dream on silly boy. Trix are for kids.

Sincerely,
RJack :)
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