Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 10:37 AM, RJack wrote:
> > Hyman you bandy about the term "open license" as if it is a special,
> > exceptional category of copyright license -- it isn't.
> 
> Open licenses are special, since they are offered unilaterally
> by licensors without communication or agreement with licensees.

Uh retard Hyman.

http://www.gnu.org/licenses/gpl.html

"by [blah-blah], you indicate your acceptance of this License"

http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance

"It may be implied from the construction of the contract that the
offeror has dispensed with the requirement of communication of
acceptance ... acceptance may be inferred from conduct"

regards,
alexander.

P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."

Hyman Rosen  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  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: SFLC is SOL

[Hyman Rosen]

On 4/13/2010 10:37 AM, RJack wrote:

Hyman you bandy about the term "open license" as if it is a special,
exceptional category of copyright license -- it isn't.


Open licenses are special, since they are offered unilaterally
by licensors without communication or agreement with licensees.


ALL copyright licenses WITHOUT exception are simply contracts to be
interpreted under the States' common law of contracts:


Rather, when it comes to understanding rights and obligations
under a license, the issues involved are identical to contract
law, so licenses are construed as contracts for purposes of
analysis.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 4/13/2010 10:25 AM, RJack wrote:

No Article III standing





As the parties invoking federal jurisdiction, respondents bear the
burden of showing standing by establishing, inter alia, that they
have suffered an injury in fact, i.e., a concrete and particularized,
actual or imminent invasion of a legally protected interest.




The legal or beneficial owner of an exclusive right under a copyright
is entitled, subject to the requirements of section 411, to institute
an action for any infringement of that particular right committed
while he or she is the owner of it.

Only anti-GPL cranks (or lawyers raising every possible defense) 
believe that straightforward copyright infringement will not have 
standing.


Only kooks like you believe that third party beneficiary contracts like
the GPL give rise to Article III standing to non-benefical parties.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 4/13/2010 10:25 AM, RJack wrote:

No Article III standing



As the parties invoking federal jurisdiction, respondents
bear the burden of showing standing by establishing, inter
alia, that they have suffered an injury in fact, i.e., a
concrete and particularized, actual or imminent invasion
of a legally protected interest.


The legal or beneficial owner of an exclusive right under
a copyright is entitled, subject to the requirements of
section 411, to institute an action for any infringement
of that particular right committed while he or she is the
owner of it.

Only anti-GPL cranks (or lawyers raising every possible defense)
believe that straightforward copyright infringement will not have
standing.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 4/13/2010 10:05 AM, Alexander Terekhov wrote:
dteme...@nvalaw.com is a real "attorney spending a great deal of 
time on software related IP licensing and litigation matters".


Real attorneys who spend a great deal of time on IP licensing and 
litigation are unlikely to have spent any of that time actually 
dealing with violations of open licenses, and are probably no more 
expert at it than the academeic writers. Possibly less so, since the 
typical software license is a simple two-party contract.


Hyman you bandy about the term "open license" as if it is a special,
exceptional category of copyright license -- it isn't.

ALL copyright licenses WITHOUT exception are simply contracts to be
interpreted under the States' common law of contracts:

"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08. Under
Wisconsin law, contracts are to be construed as they are written. Amcast
Indus. Corp. v. Affiliated FM Ins. Co., 584 N.W.2d 218, 226 (Wis. App.
1998)." 187 F.3d 690 (7th Cir. 1999)

"Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006).


There is no *legal* definition of "open license" versus "proprietary
license" those are simply terms made up by the software community.

Sincerely,
RJack :)

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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 4/13/2010 10:01 AM, RJack wrote:
1) The SFLC is being tried in a federal district in the Second 
Circuit not in the CAFC: The JMRI case would be useful as toilet 
paper (and nothing more) in the Second Circuit.


The reasoning of the CAFC is sound, and therefore other courts can be
 expected to reach the same conclusions.

"... (a) concrete and particularized and (b) actual or imminent, 
not conjectural or hypothetical;..."


17 USC 504 

 § 504. Remedies for infringement: Damages and profits (a) In 
General.— Except as otherwise provided by this title, an infringer of
 copyright is liable for either— (1) the copyright owner’s actual 
damages and any additional profits of the infringer, as provided by 
subsection (b); or (2) statutory damages, as provided by subsection 
(c).


No Article III standing, no jurisdiction and no lawsuit. You must have
actual damages provable to receive Article III standing. ROFL.

Sincerely,
RJack :)
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Re: SFLC is SOL

[David Kastrup]

Alexander Terekhov  writes:

> Hyman Rosen wrote:
>> 
>> On 4/13/2010 9:20 AM, Alexander Terekhov wrote:
>> > http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
>
> dteme...@nvalaw.com is a real "attorney spending a great deal of time on
> software related IP licensing and litigation matters".

Well, _you_ are spending a great deal of time on that, too, and look
what kind of nonsense we get out of that.

-- 
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Re: SFLC is SOL

[Hyman Rosen]

On 4/13/2010 10:05 AM, Alexander Terekhov wrote:

dteme...@nvalaw.com is a real "attorney spending a great deal of time on
software related IP licensing and litigation matters".


Real attorneys who spend a great deal of time on IP
licensing and litigation are unlikely to have spent
any of that time actually dealing with violations
of open licenses, and are probably no more expert at
it than the academeic writers. Possibly less so, since
the typical software license is a simple two-party
contract.
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Re: SFLC is SOL

[Hyman Rosen]

On 4/13/2010 10:01 AM, RJack wrote:

1) The SFLC is being tried in a federal district in the Second Circuit
not in the CAFC:
The JMRI case would be useful as toilet paper (and nothing more) in the
Second Circuit.


The reasoning of the CAFC is sound, and therefore other
courts can be expected to reach the same conclusions.


"... (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical;..."


17 USC 504

§ 504. Remedies for infringement: Damages and profits
(a) In General.— Except as otherwise provided by this title,
an infringer of copyright is liable for either—
(1) the copyright owner’s actual damages and any additional
profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 9:20 AM, Alexander Terekhov wrote:
> > http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936

dteme...@nvalaw.com is a real "attorney spending a great deal of time on
software related IP licensing and litigation matters".

http://nvalaw.com/

> 
> I can quote meaningless random papers too!
> 
>  But no matter how one construes the GPL, the requirement of
>  consideration is not met. Though the licensor’s restrictions
>  in rights might benefit the licensor, the GPL does not state
>  whether those restrictions would translate into consideration
>  and if consideration would benefit the licensor or a third
>  party. The lack of a meeting of minds makes the GPL contract
>  theory fly in the face of the UCC, state common law, and common
>  sense. This leads us back to Moglen’s now plausible assertion
>  that the GPL is not a contract.

http://www.sapnakumar.org/

sapnakumar.org is just yet another crazy academic akin to Moglen and
Lessig.

The stuff from crazy academics akin to Moglen and Lessig such as
sapnakumar.org is indeed mostly meaningless bullshit, I agree.

regards,
alexander.

P.S. "Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law."

Hyman Rosen  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  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: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 4/12/2010 8:36 PM, amicus_curious wrote:
Now consider that the binary form of a software program is the 
image. Then the computer used to compile the software binary is, in

 effect, the camera and the source code is the directions on where
 to stand and where to point the camera. Is that source code 
protected as a unique expression, too? I don't think that question

 has been answered in court as yet.

[...]

If you go back to the first principles and see where the copyright
 is to protect the artist's expression and reason that is mainly
due to protecting the artist's income from his work, the problem
gets even more cloudy when there is no financial benefit accruing
to the artist in the open source world. No damage, no compensation
in the contracts world, hence the insistence that the GPL is not a
 contract.


 In the JMRI 
decision, the CAFC said: Copyright licenses are designed to support 
the right to exclude; money damages alone do not support or enforce 
that right. The choice to exact consideration in the form of 
compliance with the open source requirements of disclosure and 
explanation of changes, rather than as a dollar-denominated fee, is 
entitled to no less legal recognition. Indeed, because a calculation
 of damages is inherently speculative, these types of license 
restrictions might well be rendered meaningless absent the ability to

 enforce through injunctive relief.


1) The SFLC is being tried in a federal district in the Second Circuit
not in the CAFC:

"In Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909
(Fed.Cir.1984), this court said:

Accordingly, we deem it appropriate here to decide non-patent matters in
the light of the problems faced by the district court from which each
count originated, including the law there applicable. In this manner, we
desire to avoid exacerbating the problem of intercircuit conflicts in
non-patent areas. A district court judge should not be expected to look
over his shoulder to the law in this circuit, save as to those claims
over which our subject matter jurisdiction is exclusive. [Footnote omitted.]

The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and in
this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223 USPQ
1074 (Fed. Cir. 1984) (en banc)

The JMRI case would be useful as toilet paper (and nothing more) in the
Second Circuit.

As to damages provable, here's the law:

"In Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992), we
held that, to satisfy Article III’s standing requirements, a plaintiff
must show (1) it has suffered an “injury in fact” that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision."
Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services,
Inc., 528 U.S. 167 (2000)

Let's you and I review the Supreme Court's holding, Hyman.

"... (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical;..."

Which part of "concrete and particularized" and "not conjectural or
hypothetical" is escaping your cognitive abilities Hyman?

Sincerely,
RJack :)

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Re: SFLC is SOL

[Hyman Rosen]

On 4/13/2010 9:20 AM, Alexander Terekhov wrote:

http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936


I can quote meaningless random papers too!

But no matter how one construes the GPL, the requirement of
consideration is not met. Though the licensor’s restrictions
in rights might benefit the licensor, the GPL does not state
whether those restrictions would translate into consideration
and if consideration would benefit the licensor or a third
party. The lack of a meeting of minds makes the GPL contract
theory fly in the face of the UCC, state common law, and common
sense. This leads us back to Moglen’s now plausible assertion
that the GPL is not a contract.
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Re: SFLC is SOL

[Alexander Terekhov]

Good morning Hyman!

Hyman Rosen wrote:
[...]
> > hence the insistence that the GPL is not a contract.
> 
> 

"Under California contract law..."

http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936

--- 
This is not legal advice... 

As an attorney spending a great deal of time on software related IP 
licensing and litigation matters, I find the CAFC decision in the 
Jacobsen case to be troubling. While I am sympathetic to the court's 
apparent desire to validate the concept of open source licensing and 
its alternative forms of consideration, I do not believe that the 
court's ruling justifies a euphoric response by the open source 
community. 

First, the CAFC's decision is a clear repudiation of the "bare 
license" theory long espoused by Mr. Moglen and his followers. The 
CAFC's decision reflects the fact that open source licenses, like any 
other form of software licenses, are contracts. I agree with this 
aspect of the decision as it is well supported by precedent at all 
levels. Neither Mr. Moglen, nor any of his followers have cited legal 
precedent in support of the bare license theory. The CAFC's decision 
should serve as clear notice that the bare license theory is nothing 
more than Moglen's wishful thinking. The necessary implication of this 
finding by the court is that open source licenses must be interpreted 
in the context of applicable state law, and to an extent, the common 
law of the Federal Circuit in which the open source agreement is 
interpreted. (This is directly in conflict with the CAFC's willful 
failure to follow state law and Ninth Circuit precedent regarding the 
interpretation of restrictions as conditions precedent). 

Second, the CAFC's opinion creates a great deal of uncertainty for 
software licensing (whether proprietary or open source). Let's take 
the GPLv3 as an example. As most peoople are aware, there are a 
variety of disagreements over exactly what is required of a licensee 
to comply with various provisions of the GPL. Section 2 of the GPL 
appears to "condition" the rights granted under the license on the 
licensee's compliance with the "conditions" stated in the license. 
Under the CAFC's decision in Jacobsen, it stands to reason that a 
licensee that fails to fully satisfy the "conditions" stated in the 
GPLv3 would infringe the licensor's copyrights rather than merely 
breaching the license. Thus, even if the licensee unintentionally 
violated the terms of the GPLv3 because the meaning of the terms are 
not clear, the licensee would be liabile for infringement. 

Why does this matter? State courts, the federal circuit courts of 
appeal and the US Supreme Court have all uniformly and routinely 
interpreted license restrictions as covenants rather than conditions 
precedent. In other words, the courts presume that the restrictions 
are covenants rather than conditions precedent unless the agreement 
clearly defines the restrictions as conditions. the CAFC's decision 
wholly ignores this long held principle of law. 

Most licenses, open source or proprietary, contain provisions whose 
meanings are open to viable debate. In the past, parties to a 
software license have largely understood that a licensee that breaches 
a license agreement's terms is liable to the licensor for damages 
decided under contract law. Proprietary licenses typically include 
provisions which define or otherwise limit the scope of damages that 
may be recovered in the event of a breach. On the other hand, a party 
that is liable for infringement of a copyright is subject to 
injunctive relief and damages equal to the owner's actual damages 
(plus the infringer's profits not covered by the owner's actual 
damages) OR statutory damages of up to $150,000 per incidence of 
infringement. Any contractually agreed limitations on damages would 
be irrelevant in the infringement setting. 

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined with a high degree of 
care to minimize a licensee's risk of unintentionally infringing the 
copyrights as a result of miinterpreting the provisions. 

Another side note - many licesne agreement issues are brought in state 
courts. Section 301(a) of the Copyright Act, however, preempts an

Re: SFLC is SOL

[Hyman Rosen]

On 4/12/2010 8:36 PM, amicus_curious wrote:

Now consider that the binary form of a software
program is the image. Then the computer used to compile the software
binary is, in effect, the camera and the source code is the directions
on where to stand and where to point the camera. Is that source code
protected as a unique expression, too? I don't think that question has
been answered in court as yet.


Here's what the Copyright Office Practices manual says:

321.03 Relationship between source code and object code.
The Copyright Office considers source code and object code
as two representations of the same computer program. For
registration purposes, the claim is in the computer program
rather than in any particular representation of the program.
Thus separate registrations are not appropriate for the
source code and object code representations of the same
computer program. However, where a work in source code is
registered in unpublished form, and the published version
of the same work is submitted for registration in object
code form, registration will be made.

This is rather similar, perhaps not coincidentally, to the
GPL's definition of source code as being the preferred form
for making changes. In any case, object code produced by a
mechanical translation of source code is the same work as
the source code for copyright purposes (not counting other
works which may be incorporated into the object code as part
of the translation process).


If you go back to the first principles and see where the copyright is to
protect the artist's expression and reason that is mainly due to
protecting the artist's income from his work, the problem gets even more
cloudy when there is no financial benefit accruing to the artist in the
open source world. No damage, no compensation in the contracts world,
hence the insistence that the GPL is not a contract.



In the JMRI decision, the CAFC said:
Copyright licenses are designed to support the right to
exclude; money damages alone do not support or enforce
that right. The choice to exact consideration in the
form of compliance with the open source requirements of
disclosure and explanation of changes, rather than as a
dollar-denominated fee, is entitled to no less legal
recognition. Indeed, because a calculation of damages
is inherently speculative, these types of license
restrictions might well be rendered meaningless absent
the ability to enforce through injunctive relief.

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Re: SFLC is SOL

[Rex Ballard]

On Apr 12, 8:36 pm, "amicus_curious"  wrote:
> "Hadron"  wrote in message
>
> news:rs3c97-ep1@news.eternal-september.org...
>
>
>
> > Rex Ballard  writes:
>
> >> On Mar 15, 6:03 pm, RJack  wrote:
> >>> Rex Ballard wrote:
> >>> > And before ANY of that goes to a jury, both sides have to show their
> >>> >  cards to the Judge and to each other.
>
> >>> Before ANY of this even goes to the discovery stage, the defendants
> >>> will file FRCP Rule 12 Motions to Dismiss challenging the legal
> >>> enforceability of the GPL contract. Only *after* determining the
> >>> enforceability of the GPL will the court be in a position to determine
> >>> what is relevant in its discovery orders. The enforceability of the
> >>> GPL is a matter of law and is determined by the trier of law (the judge
> >>> not the jury) hence the repeated language "the license speaks for
> >>> itself". One thing to watch in the defendant Answers is the language of
> >>> their defenses.
>
> >> The question at issue is whether copyright licenses are valid.
>
> > Answer : yes they are. And no amount of whining and freetardery will
> > change that.
>
> Things are not that simple, else, why have lawyers?  If you, say, take a
> photograph of the Toledo skyline at nightfall and publish the image, you own
> the copyright to that image and no one can use it without your permission.
> But if someone else borrows your camera and goes to the same spot and takes
> an identical photograph, they can use their photo as they wish.  Copyright
> essentially pertains to "and expression, fixed in a media" as the act reads.
> Now consider that the binary form of a software program is the image.  Then
> the computer used to compile the software binary is, in effect, the camera
> and the source code is the directions on where to stand and where to point
> the camera.  Is that source code protected as a unique expression, too?  I
> don't think that question has been answered in court as yet.

Both the statute of 1976 and precedent has already established that
the code compiled from source is also protected.  The only time a
compiler could alter the copyright is if the compiler generates or
include copyrighted code from other sources.  The Bison compiler is a
good example.  I argued with Richard Stallman that if proprietary code
was compiled under Bison, then moving the proprietary code into GNU
license would be stealing the code.  Richard responded, reminding me
that if the owner of the proprietary code did not want to publish his
code under GPL, they should use another compiler such as YACC.

Eventually, the problem was solved when the authors of YACC published
a version of YACC under GPL which did not put the code generated by
the program under GPL.

Linux has consistently taken a very pragmatic approach to blending
both GPL and proprietary software, using LGPL applications and shared
libraries to isolate proprietary compiled code from public license
code.

> If you go back to the first principles and see where the copyright is to
> protect the artist's expression and reason that is mainly due to protecting
> the artist's income from his work,

Actually, according to the constitution, and the statute, the aim was
to promote the free exchange of information and ideas.  There is no
requirement that an artist be compensated in cash.  The artist or
author is providing consideration in the form of the copyrighted work
- and the contract is the license agreement, in which the copyright
owner may stipulate the terms and conditions of use.

The same work can be published under different licenses.

For example, a digital video could be licensed for home use when it's
sold in stores.
It could be licensed for theater exhibition when it's loaned to
theaters.
It could be licensed for broadcast when a copy is loaned or given to a
broadcaster.
A bar has to purchase a different license for ESPN than a home viewer.

Copyright law governs not only duplication of the media, but also
performances, or play-backs.
Technically, even a play-back is a copy because the content must be
copied from the storage device to the memory and registers of the
playback device.  This is why it's illegal to interfere with software
that records the performance history of a media player.  The Digital
Millinium Copyright act more clearly restricts alterations to play-
back devices or duplication technology - making it illegal to remove
information that helps track duplication and performance as well as
detecting piracy.  The DMCA also prevents users of media from creating
software which encourages illegal copying - this is why DVD-CSS driver
for Linux was blocked in the United States.

This was why the copyright act of 1976 was passed.

> the problem gets even more cloudy when
> there is no financial benefit accruing to the artist in the open source
> world.

Actually, the artist or author is the one who is providing the
consideration.  What he is "selling" is a specific set of license
terms.  Just beca

Re: SFLC is SOL

[David Kastrup]

"amicus_curious"  writes:

> "Hadron"  wrote in message
> news:rs3c97-ep1@news.eternal-september.org...
>>
>> Answer : yes they are. And no amount of whining and freetardery will
>> change that.
>
> Things are not that simple, else, why have lawyers?  If you, say, take
> a photograph of the Toledo skyline at nightfall and publish the image,
> you own the copyright to that image and no one can use it without your
> permission.

If you do that with the Paris skyline, however, you'll get sued by the
people having registered copyright for the light arrangement of the
Eiffel tower.

I am not joking.

-- 
David Kastrup
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Re: SFLC is SOL

[amicus_curious]

"Hadron"  wrote in message 
news:rs3c97-ep1@news.eternal-september.org...

Rex Ballard  writes:


On Mar 15, 6:03 pm, RJack  wrote:

Rex Ballard wrote:
> And before ANY of that goes to a jury, both sides have to show their
>  cards to the Judge and to each other.

Before ANY of this even goes to the discovery stage, the defendants
will file FRCP Rule 12 Motions to Dismiss challenging the legal
enforceability of the GPL contract. Only *after* determining the
enforceability of the GPL will the court be in a position to determine
what is relevant in its discovery orders. The enforceability of the
GPL is a matter of law and is determined by the trier of law (the judge
not the jury) hence the repeated language "the license speaks for
itself". One thing to watch in the defendant Answers is the language of
their defenses.


The question at issue is whether copyright licenses are valid.


Answer : yes they are. And no amount of whining and freetardery will
change that.


Things are not that simple, else, why have lawyers?  If you, say, take a 
photograph of the Toledo skyline at nightfall and publish the image, you own 
the copyright to that image and no one can use it without your permission. 
But if someone else borrows your camera and goes to the same spot and takes 
an identical photograph, they can use their photo as they wish.  Copyright 
essentially pertains to "and expression, fixed in a media" as the act reads. 
Now consider that the binary form of a software program is the image.  Then 
the computer used to compile the software binary is, in effect, the camera 
and the source code is the directions on where to stand and where to point 
the camera.  Is that source code protected as a unique expression, too?  I 
don't think that question has been answered in court as yet.


If you go back to the first principles and see where the copyright is to 
protect the artist's expression and reason that is mainly due to protecting 
the artist's income from his work, the problem gets even more cloudy when 
there is no financial benefit accruing to the artist in the open source 
world.  No damage, no compensation in the contracts world, hence the 
insistence that the GPL is not a contract. 


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Re: SFLC is SOL

[Hadron]

Rex Ballard  writes:

> On Mar 15, 6:03 pm, RJack  wrote:
>> Rex Ballard wrote:
>> > And before ANY of that goes to a jury, both sides have to show their
>> >  cards to the Judge and to each other.
>>
>> Before ANY of this even goes to the discovery stage, the defendants
>> will file FRCP Rule 12 Motions to Dismiss challenging the legal
>> enforceability of the GPL contract. Only *after* determining the
>> enforceability of the GPL will the court be in a position to determine
>> what is relevant in its discovery orders. The enforceability of the
>> GPL is a matter of law and is determined by the trier of law (the judge
>> not the jury) hence the repeated language "the license speaks for
>> itself". One thing to watch in the defendant Answers is the language of
>> their defenses.
>
> The question at issue is whether copyright licenses are valid.

Answer : yes they are. And no amount of whining and freetardery will
change that.
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Re: SFLC is SOL

[Rex Ballard]

On Mar 15, 6:03 pm, RJack  wrote:
> Rex Ballard wrote:
> > And before ANY of that goes to a jury, both sides have to show their
> >  cards to the Judge and to each other.
>
> Before ANY of this even goes to the discovery stage, the defendants
> will file FRCP Rule 12 Motions to Dismiss challenging the legal
> enforceability of the GPL contract. Only *after* determining the
> enforceability of the GPL will the court be in a position to determine
> what is relevant in its discovery orders. The enforceability of the
> GPL is a matter of law and is determined by the trier of law (the judge
> not the jury) hence the repeated language "the license speaks for
> itself". One thing to watch in the defendant Answers is the language of
> their defenses.

The question at issue is whether copyright licenses are valid.
Copyright licenses were part of the Copyright Act of 1976, and allowed
a publisher to stipulate the types of use that would be authorized.
This license was designed to help establish what the copyright owner
considered "Fair use".  The license has been established law since
1977, and has been a key element in the success of companies like
Microsoft, Apple, Oracle, Sun, IBM, and numerous other software
publishers.

The GNU Public License is a copyright license, just like any other.
The law does not require a financial exchange, only that the material
be copyrighted.  The license is an agreement between the publisher and
the licensee, in exchange for the access to the copyrighted work, the
licensee agrees comply with the terms of the specific copyright
license covering that agreement.

If you buy a DVD at WalMart, there is a license agreement which
specifies that it is licensed for home entertainment only.  If you
want to have a few friends over to your house to watch the movie, that
is usually still considered home use.  On the other hand, if you
charge some sort of fee for access to your living room, where the
movie will be shown, then you are violating the terms of the copyright
license.

> Hence defendant Versa's Answer:
>
> ==
>                    FIFTEENTH AFFIRMATIVE DEFENSE
>         (ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred, limited and/or excluded on the grounds that the alleged license
> at issue in this case and/or certain provisions contained therein are
> illegal, unconscionable and barred by public policy as well as by
> statutory and case law.
> ===
>
> This is not standard boilerplate language. You may accept as gospel that
> at some point before general discovery begins, a Motion to Dismiss based
> on 17 USC 301 and federal preemption as well as a claim of misuse of
> copyright will be filed that challenges the GPL.

One of the elements of a copyright license is that of derivative
works.  If you take someone's copyrighted material, and make changes
to that material, this is a derivative work.  If the original
copyrighted work stipulated terms for the publication of derivative
works, then this is also a legitimate part of the agreement.

I would suspect that Versa will attempt to claim that the GNU
copyrighted work is actually in Public Domain, or was published by the
original author under license terms that were more permissive.  In
some cases, this is a valid argument.  For example, many authors
published their works under both the BSD license AND the GNP Public
License.

In addition, there may be some code which is interfaced through LGPL
or "Plug-In" technologies that may not necessarily need to be
published under the terms of the GPL and LGPL.  For example, the Linux
kernel can call a function contained in a separate shared library
file, the separate file is not covered by GPL or LGPL, but the wrapper
code used to make the call - the code compiled into the kernel, is
still GPL.

The burdon of proof on Versa, even in the preliminary judgement, is to
provide sufficient evidence that the software was not copyrighted, and
was in public domain, or that they were using a copy licensed under
different terms.  If SFLC affirms these assertions, then the judge
could make a preliminary ruling in favor of Versa for some elements of
the software.  If the evidence presented by Versa is not sufficient to
prove a claim of Public Domain - the judge could make a preliminary
ruling against Versa and affirm the Copyright, and therefore the
license.

Once the preliminary ruling is made, it's likely that Versa will then
look for a settlement, at which point, the SFLC will help them
determine the best way to keep what's proprietary proprietary, and
what's GNU GNU.

> Sincerely,
> RJack :)

Rex
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Re: SFLC is SOL

[Hyman Rosen]

On 3/19/2010 2:38 PM, RJack wrote:

This is the same pattern as Verizon (who also told
them to kiss their ass)


After the case against Verizon ended, Verizon made the
GPL-ed sources properly available. Thus, a successful
outcome for the SFLC.


The SFLC will *never* voluntarily allow a federal judge

> to review the GPL on the merits.

There is no need or possibility for court cases to continue
once the parties have reached agreement. So far, in all cases
filed by the SFLC, once the cases ended the defendants came
into compliance with the GPL. I fully expect the same pattern
to continue, and we indeed already have compliance from one
of the defendants in the recent filings.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/22/2010 11:30 AM, RJack wrote:

It is easily verified that neither link leads to the alleged infringed
program source code.


Of what use is a transparent lie? The source code for BusyBox is included in
.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/19/2010 4:15 PM, RJack wrote:

 The plaintiffs can verify absolutely *nothing*
about their vacuous propaganda claims of "compliance".


Of course they can. Verification is as simple as going to
the web page of the defendants and seeing that the GPLed
sources are now being properly distributed:
HDC-3000 Open Source Release

Note: This is not a required download.
Built on a Linux platform to ensure high reliability and performance.
Linux and related portions of this software are provided under the GNU
Public Licence (GPL) and the Lesser GNU Public License (LGPL).
GCI Technologies has made available the source code for those portions
of the software in this source release tarfile.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/16/2010 2:43 PM, Alexander Terekhov wrote:
> > The "unadorned" copyright doesn't not put restrictions on terms and
> > conditions of licensing of the new copyright in a derivative work (which
> > is exclusive rights and which belongs to the author of derivative work)
> > "to all third parties" thereby creating a right against the world
> > governed under state law of contract akin to the GPL.
> 
> "Doesn't not"?

The "unadorned" copyright doesn't, (does) not put restrictions on terms
and conditions of licensing of the new copyright in a derivative work
(which is exclusive right and which belongs to the author of derivative
work) "to all third parties" thereby creating a right against the world
governed under state law of contract akin to the GPL. 

> Anyway, you fail to understand copyright law, as usual. A

http://www.sciencedaily.com/releases/2009/10/091020161950.htm

Hth, Hyman.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/19/2010 4:15 PM, RJack wrote:

The plaintiffs can verify absolutely *nothing* about their vacuous
propaganda claims of "compliance".


Of course they can. Verification is as simple as going to the web
page of the defendants and seeing that the GPLed sources are now
being properly distributed: HDC-3000 Open Source Release 
 Note:

This is not a required download. Built on a Linux platform to ensure
high reliability and performance. Linux and related portions of this
software are provided under the GNU Public Licence (GPL) and the
Lesser GNU Public License (LGPL). GCI Technologies has made available
the source code for those portions of the software in this source
release tarfile.


It is easily verified that neither link leads to the alleged infringed
program source code.

Phantom settlements. Phantom source code. Phantom
copyright owners. Mucho phantom hand-waving!

It's a miracle that the SFLC didn't accuse the defendants of
establishing death panels to kill off Medicare recipients.

ROFL. LMAO.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/19/2010 2:14 PM, Alexander Terekhov wrote:

Wow, you already have compliance one of the defendants? Sez who?


The web page of the defendants, here:
HDC-3000 Open Source Release

Note: This is not a required download.
Built on a Linux platform to ensure high reliability and performance.
Linux and related portions of this software are provided under the GNU
Public Licence (GPL) and the Lesser GNU Public License (LGPL).
GCI Technologies has made available the source code for those portions
of the software in this source release tarfile.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/22/2010 3:56 PM, RJack wrote:
Just for once Hyman, try to read the Complaint. Andersen claims 
(falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he
 re4gistered with the Copyright Office. His claim to ownership of 
BusyBox, v.0.60.3 is the *only* thing that gives the court 
jurisdiction to hear infringement claims.


As a registered copyright holder of v.0.60.3 he is also a copyright 
holder of all derivative works based on v.0.60.3. If a defendant 
argues that they are copying and distributing a later version, the 
plaintiff will simply register that one with the copyright office. 
Defendant will then likely not be liable for statutory infringement 
on that version, since it was not registered when the infringement 
took place, but they will be enjoined from continuing to copy and 
distribute it.


And actually, that's likely to have a sensitive dependence on the 
judge, because some judges may decide that given the many derivative 
works created through the routine process of computer programming, 
having one version registered is enough.


In the instant case Erik Andersen wasn't even the original author 
of BusyBox v.0.60.3.


There is no need to be an original author to hold copyright in a 
work.


Baloney. You must be either an original owner or obtain a transfer
of ownership for computer code.


He is the author of a derivative work of the original BusyBox.


Let Erik Andersen register what he *does* own -- not what he *doesn't* own.

There are multiple original authors in the BusyBox v.0.60.3 program --
many are from the old BSD4.4-lite days. It is easily understood why
the defendants have stated that the plaintiff's claims are a "moving
target". Erik Andersen can't or won't identify what specific code he has
authored and registered.

Sincerely,
RJack :)




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Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> Just for once Hyman, try to read the Complaint. Andersen claims
> (falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he
> re4gistered with the Copyright Office. His claim to ownership of
> BusyBox, v.0.60.3 is the *only* thing that gives the court
> jurisdiction to hear infringement claims.
>
> You can't register Donald Duck with the Copyright Office and then
> claim infringement over Daffy Duck.

The complaint is not relevant for a settlement out of court anyway.  The
past misconduct can't be cured by distributing complaint source with
non-corresponding newer binaries.

> You're probably best know in this group as the guy who likes to
> Mooove the goalposts -- keep trying
> Hyman. Just keep trying.

The goalpost is compliance with the GPL when distributing software.  As
always.

> In the instant case Erik Andersen wasn't even the original author of
> BusyBox v.0.60.3.

Why then would defendant settle and publish?

-- 
David Kastrup
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Re: SFLC is SOL

[RJack]

Alexander Terekhov wrote:

Hyman Rosen wrote: [...]
to continue, and we indeed already have compliance from one of the 
defendants in the recent filings.


Wow, you already have compliance one of the defendants? Sez who? 
LMAO, silly Hyman!




The SFLC retreat into total defeat is easily verified on the PACER court
documents for SDNY. The plaintiffs can verify absolutely *nothing*
about their vacuous propaganda claims of "compliance". The plaintiffs
claimed infringement of:

"31. Mr. Andersen is, and at all relevant times has been, a copyright
owner under United States copyright law in the FOSS software program
known as BusyBox. See, e.g., “BusyBox, v.0.60.3.”, Copyright Reg. No.
TX0006869051 (10/2/2008)."

***
BusyBox, v.0.60.3.
Type of Work:   Computer File
Registration Number / Date: TX0006869051 / 2008-10-02
Application Title:  BusyBox, v.0.60.3.
Title:  BusyBox, v.0.60.3.
Description:Print material.
Copyright Claimant: Erik Andersen, 1971- . Address: 352 North 525 East,
Springville, Utah, 84663
Date of Creation:   2002
Date of Publication:2002-04-27
Authorship on Application:  Erik Andersen, 1971- ; Domicile: United
States; Citizenship: United States. Authorship: New and revised computer
source code by Erik Andersen.
Pre-existing Material:  Previous version of the program and computer
program code from other sources.
Basis of Claim: New and revised computer source code by Erik Andersen.
Copyright Note: C.O. correspondence.


The only link to the source code on the billion or so sites that Google
indexes is the BusyBox server. I am so thrilled that that the plaintiffs
are in compliance with their own demands concerning their program. Too
bad the defendants have told Erik Anderson to kiss their royal asses.

ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL ROFL

Sincerely,
RJack :)


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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/22/2010 11:30 AM, RJack wrote:

It is easily verified that neither link leads to the alleged
infringed program source code.


Of what use is a transparent lie?


"Transparent lie"?   "TRANSPARENT LIE"???

Show me a link to the source code for BusyBox, v.0.60.3 and I'll kiss
your lyin' ass on the public courthouse square.

The source code for BusyBox is included in 
.


Most of the stuff in BusyBox v.0.60.3 is derivative of BSD4.4-lite
and is not original work by BusyBox authors anyway.

ROFL. LMAO.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> to continue, and we indeed already have compliance from one
> of the defendants in the recent filings.

Wow, you already have compliance one of the defendants? Sez who? LMAO,
silly Hyman!

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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too, whereas GNU cannot.)
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Re: SFLC is SOL

[RJack]

Just as I predicted, a familiar pattern is emerging in the Best Buy et.
al. charade. The SFLC has stipulated extensions of time in Best Buy and
Western Digital discovery schedules so that "overseas licensors" may be
further investigated. This is the same pattern as Verizon (who also told
them to kiss their ass) where the SFLC will grant voluntary dismissals
to further court action with the named plaintiffs and then trumpet a
face saving claim of "settlement victory" over some entity never even
named in the lawsuit.

The SFLC will *never* voluntarily allow a federal judge to review the
GPL on the merits. They will *always* voluntarily dismiss their cases
and then claim that "Captain Moglen scared them out of the water".

And so the propaganda machine peddles onward.

Sincerely,
RJack :)


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Re: SFLC is SOL

[RJack]

David Kastrup wrote:

RJack  writes:

Just for once Hyman, try to read the Complaint. Andersen claims 
(falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he
 re4gistered with the Copyright Office. His claim to ownership of 
BusyBox, v.0.60.3 is the *only* thing that gives the court 
jurisdiction to hear infringement claims.


You can't register Donald Duck with the Copyright Office and then 
claim infringement over Daffy Duck.


The complaint is not relevant for a settlement out of court anyway. 
The past misconduct can't be cured by distributing complaint source 
with non-corresponding newer binaries.


You're probably best know in this group as the guy who likes to 
Mooove the goalposts -- keep trying 
Hyman. Just keep trying.


The goalpost is compliance with the GPL when distributing software. 
As always.


In the instant case Erik Andersen wasn't even the original author 
of BusyBox v.0.60.3.


Why then would defendant settle and publish?


How would I know DAK?  Maybe they're as dumb as Erik Andersen.
You're as free to speculate about their motive as I am.

Sincerely,
RJack :}
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 4:39 PM, Alexander Terekhov wrote:

The "unadorned" copyright doesn't, (does) not put restrictions on terms
and conditions of licensing of the new copyright in a derivative work
(which is exclusive right and which belongs to the author of derivative
work) "to all third parties" thereby creating a right against the world
governed under state law of contract akin to the GPL.


The author of a derivative work may license his copyright
to anyone he wishes in any way he wishes, and having the
work be covered by the GPL doesn't change that. However,
this license is useless without a matching license in the
original, because copying and distributing the derivative
work requires permission from the original rights holder
too.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> Yes. Preemption would apply when state law attempted to restrict
> what is otherwise permitted in terms similar to copyright. But the
> GPL does not restrict any behavior permitted by unadorned copyright
> law, and therefore preemption is irrelevant to the GPL.

The "unadorned" copyright doesn't not put restrictions on terms and
conditions of licensing of the new copyright in a derivative work (which
is exclusive rights and which belongs to the author of derivative work)
"to all third parties" thereby creating a right against the world
governed under state law of contract akin to the GPL. 

In the EU terms, that's article 81:

"The following shall be prohibited as incompatible with the common
market: all agreements between undertakings, decisions by associations
of undertakings and concerted practices which may affect trade between
Member States and which have as their object or effect the prevention,
restriction or distortion of competition within the common market, and
in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other
trading conditions"

To wit:

http://www.gnu.org/gnu/manifesto.html

"GNU will remove operating system software from the realm of
competition."
 
Go to doctor, Hyman.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/22/2010 1:08 PM, RJack wrote:

Hyman Rosen wrote:

On 3/22/2010 11:30 AM, RJack wrote:

It is easily verified that neither link leads to the alleged
infringed program source code.


Of what use is a transparent lie?


"Transparent lie"? "TRANSPARENT LIE"???

Show me a link to the source code for BusyBox, v.0.60.3 and I'll kiss
your lyin' ass on the public courthouse square.


Why do they need to provide the source code to v.0.60.3?
They need to provide the source code to the version they
copy and distribute. Do you have reason to believe that
v.0.60.3 is the version they copy and distribute?


The source code for BusyBox is included in
.


Most of the stuff in BusyBox v.0.60.3 is derivative of BSD4.4-lite
and is not original work by BusyBox authors anyway.


Any modification in functionality is sufficient to create a
derivative work. It does not have to satisfy any notion of
"originality". Anyone who wishes to copy and distribute a
non-GPLed early version of BusyBox may do so under whatever
license that version permits.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 2:43 PM, Alexander Terekhov wrote:

The "unadorned" copyright doesn't not put restrictions on terms and
conditions of licensing of the new copyright in a derivative work (which
is exclusive rights and which belongs to the author of derivative work)
"to all third parties" thereby creating a right against the world
governed under state law of contract akin to the GPL.


"Doesn't not"?

Anyway, you fail to understand copyright law, as usual. A
derivative work contains the original work with copyright
held by the original author and new work with copyright
held by the deriving author, provided that the derivative
work was created with permission from the original author.
Since the work contains material with rights held by more
than one author, it may be copied and distributed only by
permission from both authors. The creator of a derivative
work cannot copy and distribute without permission from the
original author, by unadorned copyright law. The GPL thus
grants extended permissions beyond what unadorned copyright
law would permit.


In the EU terms, that's article 81:


Typical irrelevancy. Daniel Wallace already miserably failed
with his antitrust and restraint of trade arguments against
the GPL, and EU courts will laugh such claims out just as US
courts did.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/22/2010 1:08 PM, RJack wrote:

Hyman Rosen wrote:

On 3/22/2010 11:30 AM, RJack wrote:
It is easily verified that neither link leads to the alleged 
infringed program source code.


Of what use is a transparent lie?


"Transparent lie"? "TRANSPARENT LIE"???

Show me a link to the source code for BusyBox, v.0.60.3 and I'll 
kiss your lyin' ass on the public courthouse square.


Why do they need to provide the source code to v.0.60.3? They need to
 provide the source code to the version they copy and distribute. Do 
you have reason to believe that v.0.60.3 is the version they copy and

 distribute?


Just for once Hyman, try to read the Complaint. Andersen claims
(falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he
re4gistered with the Copyright Office. His claim to ownership of
BusyBox, v.0.60.3 is the *only* thing that gives the court jurisdiction
to hear infringement claims.

You can't register Donald Duck with the Copyright Office and then claim
infringement over Daffy Duck.

You're probably best know in this group as the guy who likes to
Mooove the goalposts -- keep trying
Hyman. Just keep trying.

In the instant case Erik Andersen wasn't even the original author of
BusyBox v.0.60.3.



The source code for BusyBox is included in 
.


Most of the stuff in BusyBox v.0.60.3 is derivative of BSD4.4-lite
 and is not original work by BusyBox authors anyway.


Any modification in functionality is sufficient to create a 
derivative work. It does not have to satisfy any notion of 
"originality". Anyone who wishes to copy and distribute a non-GPLed 
early version of BusyBox may do so under whatever license that 
version permits.


Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/22/2010 3:56 PM, RJack wrote:

Just for once Hyman, try to read the Complaint. Andersen claims
(falsely) that he owns BusyBox, v.0.60.3 -- that's exactly what he
re4gistered with the Copyright Office. His claim to ownership of
BusyBox, v.0.60.3 is the *only* thing that gives the court jurisdiction
to hear infringement claims.


As a registered copyright holder of v.0.60.3 he is also a
copyright holder of all derivative works based on v.0.60.3.
If a defendant argues that they are copying and distributing
a later version, the plaintiff will simply register that one
with the copyright office. Defendant will then likely not be
liable for statutory infringement on that version, since it
was not registered when the infringement took place, but they
will be enjoined from continuing to copy and distribute it.

And actually, that's likely to have a sensitive dependence on
the judge, because some judges may decide that given the many
derivative works created through the routine process of computer
programming, having one version registered is enough.


In the instant case Erik Andersen wasn't even the original author of
BusyBox v.0.60.3.


There is no need to be an original author to hold copyright
in a work. He is the author of a derivative work of the original
BusyBox.
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Re: SFLC is SOL

[Alan Mackenzie]

In gnu.misc.discuss David Kastrup  wrote:

> The complaint is not relevant for a settlement out of court anyway.
> The past misconduct can't be cured by distributing complaint source
> with non-corresponding newer binaries.

Why would one want to distribute a writ with the newer binaries?  ;-)

-- 
Alan Mackenzie (Nuremberg, Germany).

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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> work be covered by the GPL doesn't change that. However,
> this license is useless without a matching license in the

Re "matching license" to retarded gnutians:

http://www.sciencedaily.com/releases/2009/10/091020161950.htm

Hth, Hyman.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:45 PM, Alexander Terekhov wrote:

The ownership interests translators to works licensed under the
GPL might have in their translations are seriously limited, given
that any distribution of those translations must be done under the
terms of the GPL.


Yes, choosing to create a work based on GPL-covered work
limits how that work may be copied or distributed. That
is a choice the author makes. The same choices apply to
the use of any other work - the conditions placed upon
those works by their rights holders must be obeyed if the
work is to be used.


"92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the
information. "


Yes. Preemption would apply when state law attempted to restrict
what is otherwise permitted in terms similar to copyright. But the
GPL does not restrict any behavior permitted by unadorned copyright
law, and therefore preemption is irrelevant to the GPL.
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Re: SFLC is SOL

[David Kastrup]

Hyman Rosen  writes:

> On 3/16/2010 12:45 PM, Alexander Terekhov wrote:
>> The ownership interests translators to works licensed under the
>> GPL might have in their translations are seriously limited, given
>> that any distribution of those translations must be done under the
>> terms of the GPL.
>
> Yes, choosing to create a work based on GPL-covered work
> limits how that work may be copied or distributed. That
> is a choice the author makes. The same choices apply to
> the use of any other work - the conditions placed upon
> those works by their rights holders must be obeyed if the
> work is to be used.

Actually, copyright does grant rights to the legal purchaser of
copyrighted media: copyrighting the media binds the copyright owner to
the provisions of copyright.  Shrinkwrap "licenses" and their ilk try to
make the purchaser agree a priori not to exercise his rights.

But if a copy of a work is acquired with permission of the author, short
of any contractual restriction that the recipient explicitly signifies
agreement with, the author has no say in the default provisions of
copyright.

-- 
David Kastrup
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 1:54 PM, RJack wrote:

There exist two mutually exclusive copyrights in a derivative work (17
USC § 103). Nothing but a claim of *contract* will legally secure the
two mutually exclusive permissions required to distribute a derivative
work "as a whole". (Assuming two authors).


The two permissions are secured, for GPL-covered works,
by both authors releasing their work under the GPL. No
contract is needed, the license is sufficient.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:45 PM, Alexander Terekhov wrote:

The ownership interests translators to works licensed under the
GPL might have in their translations are seriously limited, given
that any distribution of those translations must be done under the
terms of the GPL.


Yes, choosing to create a work based on GPL-covered work
limits how that work may be copied or distributed. That
is a choice the author makes. The same choices apply to
the use of any other work - the conditions placed upon
those works by their rights holders must be obeyed if the
work is to be used.


"92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the
information. "


Yes. Preemption would apply when state law attempted to restrict
what is otherwise permitted in terms similar to copyright. But the
GPL does not restrict any behavior permitted by unadorned copyright
law, and therefore preemption is irrelevant to the GPL.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 1:00 PM, RJack wrote:

Even the "distribution" of derivative works? Really? Hop on over to
 your copy of the Copyright Act and show us. Who am I supposed to 
believe? You or my lyin' eyes?


17 USC 106, of course.


 (3) to distribute copies or phonorecords of the copyrighted work to 
the public by sale or other transfer of ownership, or by rental, 
lease, or lending;


Copyright in a derivative work is held by both the original author 
and by the author of the derivative work, and therefore distribution 
of a derivative work is the exclusive right of both of the authors of

 the work.


There exist two mutually exclusive copyrights in a derivative work (17
USC § 103). Nothing but a claim of *contract* will legally secure the
two mutually exclusive permissions required to distribute a derivative
work "as a whole". (Assuming two authors).

Sincerely,
RJack :)
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> For example, an author may have someone prepare a translation of
> his work into a different language, and the translator then owns
> copyright in the translation, but may not copy and distribute the
> translation without permission from the original author because
> the translated work contains the original elements created by the
> original author.

To paraphrase IBM:

The ownership interests translators to works licensed under the 
GPL might have in their translations are seriously limited, given 
that any distribution of those translations must be done under the 
terms of the GPL.

So yes silly Hyman,

"Enforcing a contract between two parties leaves the subject matter of 
the contract (whether copyrighted or not) entirely unencumbered by any 
contract issue as to others not party to the transaction. Property 
rights and contract rights are simply not equivalent.92 "

But

"92. It can be argued that this might change if, in effect, no third 
party can avoid being bound by the contract terms in order to use the 
information. "

In context of

"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . . 

But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) 

To repeat from Nimmer:

"It can be argued that this might change if, in effect, no third party 
can avoid being bound by the contract terms in order to use the 
information. "

regards,
alexander.

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

Hyman Rosen  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  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: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:28 PM, Alexander Terekhov wrote:

Hyman Rosen wrote:

Copyright in a derivative work is held by both the original
author and by the author of the derivative work, and therefore


Read 17 USC 103. And think of derivative works based on
public domain material.


A derivative work based on public domain material would
have only the author of the derivative work as the rights
holder. What of it?


"The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from
the preexisting material employed in the work, and does not imply any
exclusive right in the preexisting material. The copyright in such work
is independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection in the
preexisting material."


Yes, of course. You quote this as if it has some significance
to a point you are trying to make, but it does not. The author
of a derivative work holds sole copyright in the derivative
portion, and the original author holds sole copyright in the
original portion. The derivative work as a whole contains both
portions, and may only be copied and distributed with permission
from both authors.

For example, an author may have someone prepare a translation of
his work into a different language, and the translator then owns
copyright in the translation, but may not copy and distribute the
translation without permission from the original author because
the translated work contains the original elements created by the
original author.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
[...]
> Copyright in a derivative work is held by both the original
> author and by the author of the derivative work, and therefore

Read 17 USC 103, retard Hyman. And think of derivative works based on
public domain material.

"The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from
the preexisting material employed in the work, and does not imply any
exclusive right in the preexisting material. The copyright in such work
is independent of, and does not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright protection in the
preexisting material."

Hth.

regards,
alexander.

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

Hyman Rosen  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  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: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 1:00 PM, RJack wrote:

Even the "distribution" of derivative works? Really?
Hop on over to your copy of the Copyright Act and show us.
Who am I supposed to believe? You or my lyin' eyes?


17 USC 106, of course.


(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;

Copyright in a derivative work is held by both the original
author and by the author of the derivative work, and therefore
distribution of a derivative work is the exclusive right of
both of the authors of the work.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 11:51 AM, Alexander Terekhov wrote:

To quote IBM: "The ownership interests contributors to software
licensed under the GPL might have in their modifications are
seriously limited, given that any distribution of those
modifications must be done under the terms of the GPL."


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

 enforce through injunctive relief.


"92. It can be argued that this might change if, in effect, no
third party can avoid being bound by the contract terms in order to
use the information.


Yes. Preemption would apply when state law attempted to restrict what
is otherwise permitted in terms similar to copyright. But the GPL
does not restrict any behavior permitted by unadorned copyright law,
and therefore preemption is irrelevant to the GPL.


Even the "distribution" of derivative works? Really?
Hop on over to your copy of the Copyright Act and show us.
Who am I supposed to believe? You or my lyin' eyes?

Sincerely,
RJack :)

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Re: SFLC is SOL

[David Kastrup]

Hyman Rosen  writes:

> On 3/16/2010 12:46 PM, RJack wrote:
>> Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
>> asserted that the plaintiffs lack standing to bring the GPL claims.
>
> No, they are incorrect in their claim.

Fortunately, we can just wait for the results of the case.  If the
plaintiff lack standing, there will be no reason for the defendants to
make the respective sources available under the GPL.  Nor will there be
any reason for them to merely pretend doing so, as some of our more
desperate trolls claim to consider likely.

-- 
David Kastrup
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Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> David Kastrup wrote:
>> RJack  writes:
>>
>>> That's a really brilliant tautology. "If I never use the GPL then
>>> the Supreme Court ruling doesn't apply"! Clever. Really clever.
>>
>> You are getting this backwards.  The Supreme Court talks about
>> non-parties here.  If you, as recipient of software, don't make use
>> of the GPL, you are a non-party.  So the Supreme Court ruling
>> concerning non-parties _does_ apply, and you are not bound by the
>> terms of the GPL. If you, however, make use of the GPL, you become a
>> party of the license agreement.
>
> Who am I supposed to believe? You or my lyin' eyes? ROFL.

I think that the lying happens later in the processing chain.  Anyway,
if you have access to a brain, I recommend that you switch it on.  That
way, you avoid the need to believe anybody else.

> Sincerely,

Unlikely.

-- 
David Kastrup
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 11:51 AM, Alexander Terekhov wrote:

To quote IBM:
"The ownership interests contributors to software licensed under the
GPL might have in their modifications are seriously limited, given
that any distribution of those modifications must be done under the
terms of the GPL."



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


"92. It can be argued that this might change if, in effect, no third
party can avoid being bound by the contract terms in order to use the
information.


Yes. Preemption would apply when state law attempted to restrict
what is otherwise permitted in terms similar to copyright. But the
GPL does not restrict any behavior permitted by unadorned copyright
law, and therefore preemption is irrelevant to the GPL.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 12:27 PM, RJack wrote:

"A plaintiff must point to some type of cognizable harm, whether
such harm is physical, economic, reputational, contractual, or even
 aesthetic. . . But the injury in fact test requires more than an
injury to a cognizable interest. It requires that the party seeking
review be himself among the injured.”


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

 enforce through injunctive relief.



"Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909
(Fed.Cir.1984), this court said:

Accordingly, we deem it appropriate here to decide non-patent matters in
the light of the problems faced by the district court from which each
count originated, including the law there applicable. In this manner, we
desire to avoid exacerbating the problem of intercircuit conflicts in
non-patent areas. A district court judge should not be expected to look
over his shoulder to the law in this circuit, save as to those claims
over which our subject matter jurisdiction is exclusive. [Footnote omitted.]

The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and in
this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223 USPQ
1074 (Fed. Cir. 1984) (en banc).
Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:46 PM, RJack wrote:

Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
asserted that the plaintiffs lack standing to bring the GPL claims.


No, they are incorrect in their claim.


The GPL attempts to grant benefits to all "third parties"
(hence the name "Public License"). Nowhere in the GPL is either actual
party (i.e. non-third party) to the contract named as a benificiary.
Thus the plaintiffs have no Article III standing since they are not
conract beneficiaries.


This argument is backwards. The plaintiffs are not beneficiaries
of the GPL, they are copyright holders of the covered work.


"A plaintiff must point to some type of cognizable harm, whether such
harm is physical, economic, reputational, contractual, or even
aesthetic. . . But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be
himself among the injured.”



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.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/16/2010 12:03 PM, RJack wrote:
> > That's a really brilliant tautology.
> > "If I never use the GPL then the Supreme Court ruling doesn't apply"!
> > Clever. Really clever.
> 
> If you choose not to avail yourself of the permissions granted
> by the GPL, then you are not bound by it. The Supreme Court says

Uh retard Hyman. 

To quote IBM:

"The ownership interests contributors to software licensed under the 
GPL might have in their modifications are seriously limited, given 
that any distribution of those modifications must be done under the 
terms of the GPL." 

Yes silly Hyman,

"Enforcing a contract between two parties leaves the subject matter of 
the contract (whether copyrighted or not) entirely unencumbered by any 
contract issue as to others not party to the transaction. Property 
rights and contract rights are simply not equivalent.92 "

But

"92. It can be argued that this might change if, in effect, no third 
party can avoid being bound by the contract terms in order to use the 
information. 
- 

In context of

"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . . 

But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) 

To repeat from Nimmer:

"It can be argued that this might change if, in effect, no third party 
can avoid being bound by the contract terms in order to use the 
information. "

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:40 PM, RJack wrote:

If you choose not to avail yourself of the permissions granted by the
GPL, then you are not bound by it. The Supreme Court says that a
contract cannot bind a non-party. Both of these things are
simultaneously true. You seem very confused. Certainly if you choose
to accept the permissions of the GPL then you license the covered
work at no charge to all third parties under the GPL,


In defiance of the Supreme Court ruling.


No, in accordance with the Supreme Court ruling. If you choose to
accept the permissions offered by the GPL, then you become a party
to it, and must obey its conditions.


but that does not bind the third parties to anything unless they too
choose to accept the permissions of the GPL.


If they are not bound then you haven't *caused* "all third parties to
be licensed" (which is impossible anyway) and thus have not satisfied
the GPL requirements.


You have, by copying and distributing the covered work along with
the GPL, which specifies that you are granting this license to all
third parties.
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Re: SFLC is SOL

[RJack]

RJack wrote:


Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
 asserted that the plaintiffs lack standing to bring the GPL claims.

The GPL attempts to grant benefits to all "third parties" (hence the 
name "Public License"). Nowhere in the GPL is either actual party 
(i.e. non-third party) to the contract named as a beneficiary. Thus 
the plaintiffs have no Article III standing since they are not 
contract beneficiaries.


"A plaintiff must point to some type of cognizable harm, whether such
 harm is physical, economic, reputational, contractual, or even 
aesthetic. . . But the injury in fact test requires more than an 
injury to a cognizable interest. It requires that the party seeking 
review be himself among the injured.” Koziara v. City of Casselberry,

 392 F.3d 1302 (11th Cir. 2004)



Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
asserted that the plaintiffs lack standing to bring the GPL claims.

The GPL attempts to grant benefits to all "third parties"
(hence the name "Public License"). Nowhere in the GPL is either actual
party (i.e. non-third party) to the contract named as a benificiary.
Thus the plaintiffs have no Article III standing since they are not
conract beneficiaries.


"A plaintiff must point to some type of cognizable harm, whether such
harm is physical, economic, reputational, contractual, or even
aesthetic. . . But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be
himself among the injured.” Koziara v. City of Casselberry, 392 F.3d
1302 (11th Cir. 2004)

Sincerely,
RJack :)
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Re: SFLC is SOL

[RJack]

David Kastrup wrote:

RJack  writes:


Hyman Rosen wrote:

On 3/16/2010 11:42 AM, RJack wrote:

GPLv2: "b) You must cause any work that you distribute or
publish, that in whole or in part contains or is derived from
the Program or any part thereof, to be licensed as a whole at
no charge to all third parties under the terms of this
License."

Supreme Court: "[I]t goes without saying that a contract cannot
 bind a non-party".
The GPL sets conditions for acquiring permission to copy and 
distribute a covered work. No non-parties are bound by the GPL

unless they choose to acquire the permissions offered by the GPL.
This is consistent with the quotes.

That's a really brilliant tautology. "If I never use the GPL then
the Supreme Court ruling doesn't apply"! Clever. Really clever.


You are getting this backwards.  The Supreme Court talks about 
non-parties here.  If you, as recipient of software, don't make use

of the GPL, you are a non-party.  So the Supreme Court ruling
concerning non-parties _does_ apply, and you are not bound by the
terms of the GPL. If you, however, make use of the GPL, you become a
party of the license agreement.


Who am I supposed to believe? You or my lyin' eyes? ROFL.

 In that case, the Supreme Court ruling concerning

non-parties does no longer apply, and you _are_, as a party, bound by
 the license terms.

The difference between a contract and a license is that with a
license, you have the choice to be considered a party, or a
non-party.


Sincerely,
RJack :)
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 12:03 PM, RJack wrote:

That's a really brilliant tautology. "If I never use the GPL then
the Supreme Court ruling doesn't apply"! Clever. Really clever.


If you choose not to avail yourself of the permissions granted by the
GPL, then you are not bound by it. The Supreme Court says that a
contract cannot bind a non-party. Both of these things are 
simultaneously true. You seem very confused. Certainly if you choose

to accept the permissions of the GPL then you license the covered
work at no charge to all third parties under the GPL,


In defiance of the Supreme Court ruling.

but that does not bind the third parties to anything unless they too 
choose to accept the permissions of the GPL.


If they are not bound then you haven't *caused* "all third parties to
be licensed" (which is impossible anyway) and thus have not satisfied
the GPL requirements.

Sincerely,
RJack :)

Only in the land of GNU can you have your cake and eat it too.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:27 PM, RJack wrote:

"A plaintiff must point to some type of cognizable harm, whether such
harm is physical, economic, reputational, contractual, or even
aesthetic. . . But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be
himself among the injured.”



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.
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Re: SFLC is SOL

[RJack]

Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
asserted that the plaintiffs lack standing to bring the GPL claims.

The GPL attempts to grant benefits to all "third parties"
(hence the name "Public License"). Nowhere in the GPL is either actual
party (i.e. non-third party) to the contract named as a beneficiary.
Thus the plaintiffs have no Article III standing since they are not
contract beneficiaries.

"A plaintiff must point to some type of cognizable harm, whether such
harm is physical, economic, reputational, contractual, or even
aesthetic. . . But the injury in fact test requires more than an injury
to a cognizable interest. It requires that the party seeking review be
himself among the injured.” Koziara v. City of Casselberry, 392 F.3d
1302 (11th Cir. 2004)


Sincerely,
RJack :)
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Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> Hyman Rosen wrote:
>> On 3/16/2010 11:42 AM, RJack wrote:
>>> GPLv2: "b) You must cause any work that you distribute or publish,
>>> that in whole or in part contains or is derived from the Program or
>>> any part thereof, to be licensed as a whole at no charge to all
>>> third parties under the terms of this License."
>>>
>>> Supreme Court: "[I]t goes without saying that a contract cannot
>>> bind a non-party".
>>
>> The GPL sets conditions for acquiring permission to copy and
>> distribute a covered work. No non-parties are bound by the GPL unless
>> they choose to acquire the permissions offered by the GPL. This is
>> consistent with the quotes.
>
> That's a really brilliant tautology.
> "If I never use the GPL then the Supreme Court ruling doesn't apply"!
> Clever. Really clever.

You are getting this backwards.  The Supreme Court talks about
non-parties here.  If you, as recipient of software, don't make use of
the GPL, you are a non-party.  So the Supreme Court ruling concerning
non-parties _does_ apply, and you are not bound by the terms of the GPL.
If you, however, make use of the GPL, you become a party of the license
agreement.  In that case, the Supreme Court ruling concerning
non-parties does no longer apply, and you _are_, as a party, bound by
the license terms.

The difference between a contract and a license is that with a license,
you have the choice to be considered a party, or a non-party.

-- 
David Kastrup
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:03 PM, RJack wrote:

That's a really brilliant tautology.
"If I never use the GPL then the Supreme Court ruling doesn't apply"!
Clever. Really clever.


If you choose not to avail yourself of the permissions granted
by the GPL, then you are not bound by it. The Supreme Court says
that a contract cannot bind a non-party. Both of these things are
simultaneously true. You seem very confused. Certainly if you
choose to accept the permissions of the GPL then you license the
covered work at no charge to all third parties under the GPL, but
that does not bind the third parties to anything unless they too
choose to accept the permissions of the GPL.
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 11:42 AM, RJack wrote:

GPLv2: "b) You must cause any work that you distribute or publish,
that in whole or in part contains or is derived from the Program or
any part thereof, to be licensed as a whole at no charge to all
third parties under the terms of this License."

Supreme Court: "[I]t goes without saying that a contract cannot
bind a non-party".


The GPL sets conditions for acquiring permission to copy and
distribute a covered work. No non-parties are bound by the GPL unless
they choose to acquire the permissions offered by the GPL. This is
consistent with the quotes.


That's a really brilliant tautology.
"If I never use the GPL then the Supreme Court ruling doesn't apply"!
Clever. Really clever.

ROFL. ROFL. ROFL.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 11:42 AM, RJack wrote:

GPLv2:
"b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License."

Supreme Court:
"[I]t goes without saying that a contract cannot bind a non-party".


The GPL sets conditions for acquiring permission to copy
and distribute a covered work. No non-parties are bound
by the GPL unless they choose to acquire the permissions
offered by the GPL. This is consistent with the quotes.
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Re: SFLC is SOL

[David Kastrup]

Hyman Rosen  writes:

> On 3/16/2010 10:05 AM, Alexander Terekhov wrote:
>> Read a bit more than a couple of introductory paragraphs
>
> Nothing else you quote at all supports the notion that
> preemption has anything to do with the GPL. That's not
> surprising, since preemption has nothing to do with the
> GPL.
>
>> That is a dangerous position!
>
> 
> this argument would seem to suggest that any user of copyright
> works can be taken to court, and only then they can prove that
> they actually had a licence to use the work. Imagine the same
> paragraph above being said by Bill Gates and not by Eben Moglen,
> and you will get why this is such a dangerous position!
>
> This makes no sense. Assuming that "user of works" means
> someone who is copying and distributing them, then he is
> subject to infringement claims, to which he can use a
> license as a defense. This is equally true for rights held
> by Bill Gates or Eben Moglen and is entirely unsurprising.
> Why would this be considered dangerous?

In particular since anybody can be taken to court by anybody over
whatever claim regardless how silly.  What the court decides to do in
consequence is a different matter.

-- 
David Kastrup
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Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> Hyman Rosen wrote:
>> On 3/16/2010 10:05 AM, Alexander Terekhov wrote:
>>> Read a bit more than a couple of introductory paragraphs
>>
>> Nothing else you quote at all supports the notion that preemption has
>> anything to do with the GPL. That's not surprising, since preemption
>> has nothing to do with the GPL.
>
> GPLv2:
>   "b) You must cause any work that you distribute or publish, that in
> whole or in part contains or is derived from the Program or any
> part thereof, to be licensed as a whole at no charge to all third
> parties under the terms of this License."
>
>
> Supreme Court:
>
> "[I]t goes without saying that a contract cannot bind a non-party".
> EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. 534 U.S.
> 279, 122 S.Ct. 754, 151 L.Ed.2d 755.

But for those who want to have it said explicitly, the GPL spells it
out:

  9. Acceptance Not Required for Having Copies.

  You are not required to accept this License in order to receive or
run a copy of the Program.  Ancillary propagation of a covered work
occurring solely as a consequence of using peer-to-peer transmission
to receive a copy likewise does not require acceptance.  However,
nothing other than this License grants you permission to propagate
or modify any covered work.  These actions infringe copyright if you
do not accept this License.  Therefore, by modifying or propagating
a covered work, you indicate your acceptance of this License to do
so.

The GPL is not a contract, in particular not a binding contract.  It is
a license.  The recipient does not become licensee under the GPL
automatically, but by accepting the terms for modification and
redistribution.  Once he does that, he is bound by them.

It goes without saying that a contract or license cannot bind a
non-party.  Copyright, however, will bind non-parties to such an
agreement.  The recipient may, at his choice, become a party.  If he
wants to make use of the privileges granted to a party (namely a
licensee), he needs to keep the conditions for becoming so.  It is his
choice.

-- 
David Kastrup
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Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:

On 3/16/2010 10:05 AM, Alexander Terekhov wrote:

Read a bit more than a couple of introductory paragraphs


Nothing else you quote at all supports the notion that preemption has
anything to do with the GPL. That's not surprising, since preemption
has nothing to do with the GPL.


GPLv2:
  "b) You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any
part thereof, to be licensed as a whole at no charge to all third
parties under the terms of this License."


Supreme Court:

"[I]t goes without saying that a contract cannot bind a non-party".
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. 534 U.S.
279, 122 S.Ct. 754, 151 L.Ed.2d 755.

ROFL. ROFL. ROFL.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 10:05 AM, Alexander Terekhov wrote:

Read a bit more than a couple of introductory paragraphs


Nothing else you quote at all supports the notion that
preemption has anything to do with the GPL. That's not
surprising, since preemption has nothing to do with the
GPL.


That is a dangerous position!



this argument would seem to suggest that any user of copyright
works can be taken to court, and only then they can prove that
they actually had a licence to use the work. Imagine the same
paragraph above being said by Bill Gates and not by Eben Moglen,
and you will get why this is such a dangerous position!

This makes no sense. Assuming that "user of works" means
someone who is copying and distributing them, then he is
subject to infringement claims, to which he can use a
license as a defense. This is equally true for rights held
by Bill Gates or Eben Moglen and is entirely unsurprising.
Why would this be considered dangerous?
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:

[... http://escholarship.org/uc/item/31t5x09h ...]

> As usual, the sources you cite contradict your thesis.
> Preemption is entirely irrelevant to the GPL.

Read a bit more than a couple of introductory paragraphs, silly Hyman.

"Courts simply attempt to apply to contract claims the same two-prong
preemption test that they apply to non-contract state law claims. Courts
have little or no difficulty applying the subject matter requirement to
contract claims in the same case-by-case manner that they apply it to
other state law claims. Courts have a great deal of difficulty, however,
in applying the equivalence requirement in this way. 

There are three doctrinal approaches to determining whether a contract
claim is equivalent to a copyright claim and therefore preempted. The
first approach holds that a contract right is simply not equivalent to a
copyright because it reflects private ordering and applies only to those
in privity. Put another way, the mutual promise required to make a
contract is itself an “extra element” that defeats preemption.62 This
categorical approach to contract preemption cases comes, in large part,
from Judge Easterbrook’s decision in ProCD v. Zeidenberg.63"

See also footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN 
CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer: 

(consider that over time, under "bazaar model" with long chain of 
derivation in derivative works and additions to collective works by 
different authors, GPL'd IP becomes practically locked within the GPL 
pool) 

- 
Contracts do not involve the same basic scope or impact as do property 
rights established directly by operation of common law or state statute. 
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues, 
that case involved the claim that a contractual restriction on the use 
of an uncopyrighted database was preempted because the subject matter 
of the transaction was unprotectable under copyright law.90 The court 
correctly rejected this argument. It drew an explicit distinction 
between a property right (potentially preempted) and a contract right. 
"A copyright is a right against the world. Contracts, by contrast, 
generally affect only their parties; strangers may do as they please, 
so contracts do not create 'exclusive rights.'"91 This reflects the 
transactional base of a contract and draws an important, relatively 
explicit line for purposes of preemption claims. Enforcing a contract 
between two parties leaves the subject matter of the contract (whether 
copyrighted or not) entirely unencumbered by any contract issue as to 
others not party to the transaction. Property rights and contract rights 
are simply not equivalent.92 

92. It can be argued that this might change if, in effect, no third 
party can avoid being bound by the contract terms in order to use the 
information. 
- 

In context of

"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . . 

But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) 

To repeat from Nimmer:

"It can be argued that this might change if, in effect, no third party 
can avoid being bound by the contract terms in order to use the 
information. "

To wit:

http://www.technollama.co.uk/a-licence-or-a-contract 

"As far as I can tell, Moglen declares that he has a problem with the 
global variability of contract law. He says in an interview with Kathy 
Bowrey (thanks to David Berry for the link): “This is the very reason 
why I have resisted contractualisation completely because contract law 
is totally non uniform around the world.” With all due respect to Prof. 
Moglen, it is not up to him to decide if contract law applies to a 
licence, it is up to the courts. I find a part of the interview very 
telling. Here Moglen says: 

“So all that I do is bring an infringement action. It is the 
defendant’s responsibility to prove license and the only credible 
license for the defendant to plead is my license, because code is not 
otherwise available except under that license.” 

That is a dangerous position!"

Exactly!

=
   FIFTEENTH AFFIRMATIVE DEFENSE
(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)

On information and belief, Defendant alleges that Plaintiffs’ claims 
are barred, limited and/or excluded on the grounds 

Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 6:58 AM, Alexander Terekhov wrote:

Hyman Rosen wrote:

federal preemption of state
copyright enforcement has nothing to do with the GPL.

It's about
http://escholarship.org/uc/item/31t5x09h
(eScholarship: Copyright Preemption of Contracts)


http://escholarship.org/uc/item/31t5x09h
Courts now routinely reject the position that shrinkwrap
and other licenses should be held invalid as a matter of
contract law.

Copyright scholars next turned to preemption doctrine,
arguing that the Copyright Act should preempt contractual
licenses that alter the Act's "delicate balance" of rights
between owners and users. Here, too, courts have been
unreceptive. ... Preemption analysis focuses on conflicts
between federal law and state-imposed obligations, whereas
contracts reflect private ordering. Moreover, the Copyright
Act expressly allows contracts for certain purposes. Indeed,
the efficacy of the Act as a whole depends on the ability of
copyright owners to contract with others to make the most of
their copyrights.

As usual, the sources you cite contradict your thesis.
Preemption is entirely irrelevant to the GPL.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/15/2010 6:03 PM, RJack wrote:
> > You may accept as gospel that
> > at some point before general discovery begins, a Motion to Dismiss based
> > on 17 USC 301 and federal preemption as well as a claim of misuse of
> > copyright will be filed that challenges the GPL.
> 
> That seems unlikely since federal preemption of state
> copyright enforcement has nothing to do with the GPL.

It's about

http://escholarship.org/uc/item/31t5x09h
(eScholarship: Copyright Preemption of Contracts)

silly Hyman.

See also footnote 92 in BREAKING BARRIERS: THE RELATION BETWEEN 
CONTRACT AND INTELLECTUAL PROPERTY LAW By Raymond T. Nimmer: 

(consider that over time, under "bazaar model" with long chain of 
derivation in derivative works and additions to collective works by 
different authors, GPL'd IP becomes practically locked within the GPL 
pool) 

- 
Contracts do not involve the same basic scope or impact as do property 
rights established directly by operation of common law or state statute. 
This point was made in ProCD, Inc. v. Zeidenberg.89 Among other issues, 
that case involved the claim that a contractual restriction on the use 
of an uncopyrighted database was preempted because the subject matter 
of the transaction was unprotectable under copyright law.90 The court 
correctly rejected this argument. It drew an explicit distinction 
between a property right (potentially preempted) and a contract right. 
"A copyright is a right against the world. Contracts, by contrast, 
generally affect only their parties; strangers may do as they please, 
so contracts do not create 'exclusive rights.'"91 This reflects the 
transactional base of a contract and draws an important, relatively 
explicit line for purposes of preemption claims. Enforcing a contract 
between two parties leaves the subject matter of the contract (whether 
copyrighted or not) entirely unencumbered by any contract issue as to 
others not party to the transaction. Property rights and contract rights 
are simply not equivalent.92 

92. It can be argued that this might change if, in effect, no third 
party can avoid being bound by the contract terms in order to use the 
information. 
- 

In context of

"Like the Supreme Court in Wolens, we think it prudent to refrain from
adopting a rule that anything [**25] with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. National Car Rental likewise
recognizes the possibility that some applications of the law of contract
could interfere with the attainment of national objectives and therefore
come within the domain of ß 301(a). . . 

But whether a particular license is generous or restrictive, a simple
twoparty contract is not "equivalent to any of the exclusive rights
within the general scope of copyright" and therefore may be enforced."
ProCD v. Zeidenberg 86 F3d 1447 (7th Cir. 1996) 

To repeat from Nimmer:

"It can be argued that this might change if, in effect, no third party 
can avoid being bound by the contract terms in order to use the 
information. "

To wit:

http://www.technollama.co.uk/a-licence-or-a-contract 

"As far as I can tell, Moglen declares that he has a problem with the 
global variability of contract law. He says in an interview with Kathy 
Bowrey (thanks to David Berry for the link): “This is the very reason 
why I have resisted contractualisation completely because contract law 
is totally non uniform around the world.” With all due respect to Prof. 
Moglen, it is not up to him to decide if contract law applies to a 
licence, it is up to the courts. I find a part of the interview very 
telling. Here Moglen says: 

“So all that I do is bring an infringement action. It is the 
defendant’s responsibility to prove license and the only credible 
license for the defendant to plead is my license, because code is not 
otherwise available except under that license.” 

That is a dangerous position!"

Exactly!

=
   FIFTEENTH AFFIRMATIVE DEFENSE
(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)

On information and belief, Defendant alleges that Plaintiffs’ claims 
are barred, limited and/or excluded on the grounds that the alleged 
license at issue in this case and/or certain provisions contained 
therein are illegal, unconscionable and barred by public policy as 
well as by statutory and case law.
=

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since 

Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> Hence defendant Versa's Answer:
>
> ==
>   FIFTEENTH AFFIRMATIVE DEFENSE
>(ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)
>
> On information and belief, Defendant alleges that Plaintiffs’ claims are
> barred, limited and/or excluded on the grounds that the alleged license
> at issue in this case and/or certain provisions contained therein are
> illegal, unconscionable and barred by public policy as well as by
> statutory and case law.
> ===
>
> This is not standard boilerplate language.

You might slap it on a boilerplate of something going to the scrapyard.
It's a silly and/or desperate defense.

-- 
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Re: SFLC is SOL

[Hyman Rosen]

On 3/15/2010 6:03 PM, RJack wrote:

You may accept as gospel that
at some point before general discovery begins, a Motion to Dismiss based
on 17 USC 301 and federal preemption as well as a claim of misuse of
copyright will be filed that challenges the GPL.


That seems unlikely since federal preemption of state
copyright enforcement has nothing to do with the GPL.
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Re: SFLC is SOL

[RJack]

Rex Ballard wrote:


And before ANY of that goes to a jury, both sides have to show their
 cards to the Judge and to each other.


Before ANY of this even goes to the discovery stage, the defendants
will file FRCP Rule 12 Motions to Dismiss challenging the legal
enforceability of the GPL contract. Only *after* determining the
enforceability of the GPL will the court be in a position to determine
what is relevant in its discovery orders. The enforceability of the
GPL is a matter of law and is determined by the trier of law (the judge
not the jury) hence the repeated language "the license speaks for
itself". One thing to watch in the defendant Answers is the language of
their defenses.

Hence defendant Versa's Answer:

==
  FIFTEENTH AFFIRMATIVE DEFENSE
   (ILLEGAL, UNCONSCIONABLE AND CONTRARY TO PUBLIC POLICY)

On information and belief, Defendant alleges that Plaintiffs’ claims are
barred, limited and/or excluded on the grounds that the alleged license
at issue in this case and/or certain provisions contained therein are
illegal, unconscionable and barred by public policy as well as by
statutory and case law.
===

This is not standard boilerplate language. You may accept as gospel that
at some point before general discovery begins, a Motion to Dismiss based
on 17 USC 301 and federal preemption as well as a claim of misuse of
copyright will be filed that challenges the GPL.

Sincerely,
RJack :)
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/15/2010 4:02 PM, Alexander Terekhov wrote:
> > How do you know that GCI Tech. is not in breach then
> 
> Because they settled with the SFLC, demonstrated by the
> SFLC dismissing its case.

http://www.sciencedaily.com/releases/2009/10/091020161950.htm

Hth, Hyman.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

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Re: SFLC is SOL

[Rex Ballard]

On Mar 9, 3:42 am, David Kastrup  wrote:
> RJack  writes:
> > The SFLC has finally bought itself a shit-load of trouble.

> Because defendents write up a defense?  That's not really that
> remarkable.

Actually, the defendents are required by law to file a response.  If
they don't the lose in a default judgement.  The response in the case
is pretty much pro-forma.  Until the facts are known, and all
disclosures are made, and the judge make preliminary rulings as to how
the law is to be interpreted, what facts will be admissable, and what
further disclosures may be ordered, neither side wants to rush to a
settlement.

> > 13. Best Buy requests a jury trial on all issues triable of right by a
> > jury.

> Juries don't interpret the law but decide on questions of fact finding.
> There is not much leeway for finding here as long as plaintiffs did not
> ask for punishment of willful violation, but for compliance.

Again this is the de-facto response.  This is the respondant's way of
reserving their right to a jury trial, should there be no possibility
of a settlement and should the judge rule that the charges are with
full merit and that there has been wilful violation of the law.  Even
then, often, the jury will not decide the issues of fact or of law,
but may end up only being asked to determine the amount of the
settlement.

> But Best Buy does not state being in compliance, but rather not being
> affected by BusyBox copyrights.

Actually, it does not claim noncompliance, it claims that his not
violated the copyrights.

Best Buy will probably make it's case, as to whether or not they felt
they were in compliance during the disclosure process.  It's up to the
plaintiff to prove that Best Buy was not in compliance.  In this case,
the SFLC most prove that Best Buy violated the terms of the BusyBox
license.  Best Buy could respond by offering it's own disclosures
showing how it did attempt to comply with the license, at which point,
they may ask the judge for a preliminary ruling as to whether their
efforts met the legal requirements of compliance.

> > PRAYER FOR RELIEF

> > WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
> > favor against Plaintiffs/Counterclaimants as follows:

> > 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits;

Again, this is a standard part of a response.  It's pretty much
boilerplate.  If the plaintiff has no basis for the case, or at least
cannot provide evidence that the copyright was violated, in this case,
that the terms of the license were violated, then the pro-forma
countersuit is their way of preventing frivolous lawsuits.  If the
lawsuit was in fact frivolous, for example, Best Buy actually did
publish the source code on their web site, as required by the
copyright license, and Best Buy provided this information prior to
SFLC filing the lawsuit, then the judge would quite likely rule in
favor of Best Buy.

> > 2. Declaring that Best Buy has not infringed the alleged copyrights in
> > BusyBox;

This response, again boilerplate, doesn't state whether they acually
copied code from BusyBox, or whether they did copy and also adhered to
the terms of the BusyBox license.

> > 3. Awarding Best Buy its costs, including reasonable attorneys’ fees,
> > incurred in connection with this matter; and
> > 4. Awarding such other relief as this Court deems just and equitable.

> > This means that the SFLC cannot file a vouluntary dismissal without
> > the permission of Best Buy Inc.

It sets the stage for a settlement.  The SFLC and Best Buy will
provide disclosures to each other as ordered by the judge.  If Best
Buy can show that it was in compliance with the license, then it will
be up to Best Buy to prove that SFLC had been told that they were in
compliance, had proved they were in compliance, and that SFLC
knowingly filed a frivolous lawsuit.

Again, these standard boilerplate responses are designed to meet the
requirements of the law, based on the legal requirements at this stage
of the case.  These responses prevent people from filing frivolous
lawsuits which have no merit and/or are filed even after the
respondent has notified the plaintiff that it had every intention of
being in compliance, and that it was in compliance.

> There is no such thing as "filing an unvoluntary dismissal".  And of
> course, once Best Buy agrees to settle, both parties will file a joint
> request for dismissal because of having agreed on settlement terms.

Both sides need to reach an agreement to settle.  In many GPL
lawsuits, the only requirement for the settlement, is to show that you
have met, and will continue to meet, the disclosure requirements.
However, before there is a settlement, both sides need to know what
the other side knew.  They have to prove that there the copyrighted
code was copied, and they have to prove that the person or company
making the copies had violated the terms of the copyright agreement.
Finally, if they want damages, they have to 

Re: SFLC is SOL

[Hyman Rosen]

On 3/15/2010 4:02 PM, Alexander Terekhov wrote:

How do you know that GCI Tech. is not in breach then


Because they settled with the SFLC, demonstrated by the
SFLC dismissing its case.
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Re: SFLC is SOL

[Hyman Rosen]

On 3/15/2010 3:20 PM, Alexander Terekhov wrote:

Did you check the completeness of source code


No. I'm insufficiently motivated to go set up a
GNU/Linux system so that I can do the builds.
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/15/2010 3:20 PM, Alexander Terekhov wrote:
> > Did you check the completeness of source code
> 
> No. I'm insufficiently motivated to go set up a

How do you know that GCI Tech. is not in breach then you silly?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC is SOL

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 3/10/2010 11:35 AM, Alexander Terekhov wrote:
>  > In the meantime
>  > http://www.cortex-pro.com/hdc_3000.php?t=3
>  > is still in breach.
> 
> Not any more. On that page, we now have
>  HDC-3000 Open Source Release
>  
>  Note: This is not a required download.
>  Built on a Linux platform to ensure high reliability and performance.
>  Linux and related portions of this software are provided under the GNU
>  Public Licence (GPL) and the Lesser GNU Public License (LGPL).
>  GCI Technologies has made available the source code for those portions
>  of the software in this source release tarfile.
> 
> So easy. See?

Did you check the completeness of source code, silly Hyman?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
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Re: SFLC is SOL

[Hyman Rosen]

On 3/10/2010 11:35 AM, Alexander Terekhov wrote:
> In the meantime
> http://www.cortex-pro.com/hdc_3000.php?t=3
> is still in breach.

Not any more. On that page, we now have
HDC-3000 Open Source Release

Note: This is not a required download.
Built on a Linux platform to ensure high reliability and performance.
Linux and related portions of this software are provided under the GNU
Public Licence (GPL) and the Lesser GNU Public License (LGPL).
GCI Technologies has made available the source code for those portions
of the software in this source release tarfile.

So easy. See?
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Re: SFLC is SOL

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
>> 
>> Alexander Terekhov  writes:
>> 
>> > RJack wrote:
>> >>
>> >> RJack wrote:
>> >>
>> >> PACER:
>> >> SFLC just voluntarily dismissed GCI Technologies Corp.
>> >
>> > Uh, where is the SFLC's fucking press release triumphing yet another GPL
>> > 'settlement victory'?
>> >
>> > In the meantime
>> >
>> > http://www.cortex-pro.com/hdc_3000.php?t=3
>> >
>> > is still in breach.
>> 
>> It would be rather unusual for a settlement not to entail reasonable
>> deadlines for enacting the settlement.
>
> LOL. And how much time that would take, silly dak?

See?  You are already getting hysterical, as predicted.

-- 
David Kastrup
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Re: SFLC is SOL

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > RJack wrote:
> >>
> >> RJack wrote:
> >>
> >> PACER:
> >> SFLC just voluntarily dismissed GCI Technologies Corp.
> >
> > Uh, where is the SFLC's fucking press release triumphing yet another GPL
> > 'settlement victory'?
> >
> > In the meantime
> >
> > http://www.cortex-pro.com/hdc_3000.php?t=3
> >
> > is still in breach.
> 
> It would be rather unusual for a settlement not to entail reasonable
> deadlines for enacting the settlement.

LOL. And how much time that would take, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC is SOL

[David Kastrup]

Alexander Terekhov  writes:

> RJack wrote:
>> 
>> RJack wrote:
>> 
>> PACER:
>> SFLC just voluntarily dismissed GCI Technologies Corp.
>
> Uh, where is the SFLC's fucking press release triumphing yet another GPL
> 'settlement victory'?
>
> In the meantime 
>
> http://www.cortex-pro.com/hdc_3000.php?t=3
>
> is still in breach.

It would be rather unusual for a settlement not to entail reasonable
deadlines for enacting the settlement.

There is no doubt you'll act hysterical in the mean time, but that is
not really something that the involved parties can take into account
when settling.

-- 
David Kastrup
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Re: SFLC is SOL

[Alexander Terekhov]

RJack wrote:
> 
> RJack wrote:
> 
> PACER:
> SFLC just voluntarily dismissed GCI Technologies Corp.

Uh, where is the SFLC's fucking press release triumphing yet another GPL
'settlement victory'?

In the meantime 

http://www.cortex-pro.com/hdc_3000.php?t=3

is still in breach.

regards,
alexander.

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

Hyman Rosen  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  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: SFLC is SOL

[RJack]

RJack wrote:

PACER:
SFLC just voluntarily dismissed GCI Technologies Corp.
Has anyone seen this pattern before?

Sincerely,
RJack :)

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Re: SFLC is SOL

[RJack]

Alan Mackenzie wrote:

In gnu.misc.discuss RJack  wrote:

If you are so smart at interpreting the Federal Rules of Civil 
Procedure, why are you so dumb at grasping doctrines like

preemption and promissory estoppel?



Could it be that you actually know the GPL is preempted and thus
GPL code is quasi-public domain due to promissory estoppel? Perhaps
your feigned ignorance is just stubbornness (like Hyman Rosen)?


You know, RJack, if you actually believed what you spout on this
list, you wouldn't be shouting so loudly "the sun's going to come up
tomorrow". If you actually believed it, you'd be quietly confident of
the outcome, and await it with patience.  As it is, you're clearly
trying to persuade yourself.  Best of luck with that!



Whining again Alan?

Sincerely,
RJack :)

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Re: SFLC is SOL

[Alan Mackenzie]

In gnu.misc.discuss RJack  wrote:

> If you are so smart at interpreting the Federal Rules of Civil
> Procedure, why are you so dumb at grasping doctrines like preemption
> and promissory estoppel?

> Could it be that you actually know the GPL is preempted and thus GPL
> code is quasi-public domain due to promissory estoppel? Perhaps your
> feigned ignorance is just stubbornness (like Hyman Rosen)?

You know, RJack, if you actually believed what you spout on this list,
you wouldn't be shouting so loudly "the sun's going to come up tomorrow".
If you actually believed it, you'd be quietly confident of the outcome,
and await it with patience.  As it is, you're clearly trying to persuade
yourself.  Best of luck with that!

> Sincerely,
> RJack :)

-- 
Alan Mackenzie (Nuremberg, Germany).

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Re: SFLC is SOL

[David Kastrup]

"amicus_curious"  writes:

> Any merits of the case aside, it would seem to me that Moglen, et al
> has bitten off a rather large chaw.

Fortunately, it is not the job of the court to put any merits of the
case aside.

-- 
David Kastrup
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Re: SFLC is SOL

[amicus_curious]

"Alexander Terekhov"  wrote in message 
news:4b9625a2.f8e31...@web.de...


RJack wrote:


The SFLC has finally bought itself a shit-load of trouble. Five of
fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site.


It's actually more than five in the meantime:

03/08/2010 62  ANSWER to Complaint with JURY DEMAND. Document filed by
Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered:
03/08/2010)
03/08/2010 64  ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM
against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman,
David) (Entered: 03/08/2010)
03/08/2010 66  ANSWER to Complaint with JURY DEMAND. Document filed by
Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010)
03/08/2010 67  ANSWER to Complaint. Document filed by Robert Bosch
LLC.(Roth, Judith) (Entered: 03/08/2010)
03/08/2010 70  ANSWER to Complaint. Document filed by JVC Americas
Corporation.(Yohai, David) (Entered: 03/08/2010)
03/08/2010 73  ANSWER to Complaint. Document filed by Dobbs-Stanford
Corporation.(Heinrich, Justin) (Entered: 03/08/2010)
03/08/2010 75  ANSWER to Complaint with JURY DEMAND. Document filed by
Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch,
Emily) (Entered: 03/08/2010 76  ANSWER to Complaint with JURY DEMAND.
Document filed by Astak Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010)
03/08/2010 77  ANSWER to Complaint with JURY DEMAND. Document filed by
ZYXEL Communications Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010)
03/08/2010 78  ANSWER to Complaint with JURY DEMAND. Document filed by
Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010)
03/08/2010 79  ANSWER to Complaint with JURY DEMAND. Document filed by
Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010)

Any merits of the case aside, it would seem to me that Moglen, et al has 
bitten off a rather large chaw.  The staff


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

at SFLC seem out numbered and woefully outgunned in this matter.  Presumably 
a loss here, and subsequent assessment of the legal costs of the defendants, 
would put their paychecks in extreme jeopardy as well.  That may be more 
than their nerves can stand, particularly in this down economy. 


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Re: SFLC is SOL

[Hyman Rosen]

On 3/9/2010 8:35 AM, RJack wrote:

If you are so smart at interpreting the Federal Rules of Civil
Procedure, why are you so dumb at grasping doctrines like preemption
and promissory estoppel?


Neither of those applies to the GPL. Preemption is irrelevant
because GPL claims are filed with respect to infringement of
the exclusive rights of authors as described by federal law.
Promissory estoppel is irrelevant because the GPL clearly
describes the conditions under which covered works may be
copied and distributed.
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Re: SFLC is SOL

[RJack]

David Kastrup wrote:

RJack  writes:

If you are so smart at interpreting the Federal Rules of Civil 
Procedure, why are you so dumb at grasping doctrines like

preemption and promissory estoppel?


They don't apply where there is no preemption and no promissory 
estoppel.



Could it be that you actually know the GPL is preempted and thus
GPL code is quasi-public domain due to promissory estoppel?


If the GPL is invalid, there is no other license for copying and 
modification.  It is nonsensical to at once claim it being invalid,

then using "promissory estoppel" claims as an excuse to take its
permissions without heeding the conditions under which they are
given.

You can't pull it out of your hat only when you need it and ignore it
 otherwise.

Perhaps your feigned ignorance is just stubbornness (like Hyman 
Rosen)?


There is no ignorance feigned.  If repeating obvious statements to 
cranks purporting not to get them is "stubbornness", I might be

guilty of that.


Ahhh... I tried to give you the benefit of doubt. So... it really is
true ignorance and not feigned ignorance. Nothing to be particularly
proud of is it DAK?

Sincerely,
RJack :)

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Re: SFLC is SOL

[David Kastrup]

RJack  writes:

> If you are so smart at interpreting the Federal Rules of Civil
> Procedure, why are you so dumb at grasping doctrines like preemption
> and promissory estoppel?

They don't apply where there is no preemption and no promissory
estoppel.

> Could it be that you actually know the GPL is preempted and thus GPL
> code is quasi-public domain due to promissory estoppel?

If the GPL is invalid, there is no other license for copying and
modification.  It is nonsensical to at once claim it being invalid, then
using "promissory estoppel" claims as an excuse to take its permissions
without heeding the conditions under which they are given.

You can't pull it out of your hat only when you need it and ignore it
otherwise.

> Perhaps your feigned ignorance is just stubbornness (like Hyman
> Rosen)?

There is no ignorance feigned.  If repeating obvious statements to
cranks purporting not to get them is "stubbornness", I might be guilty
of that.

-- 
David Kastrup
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Re: SFLC is SOL

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > David Kastrup wrote:
> > [...]
> >> > This means that the SFLC cannot file a vouluntary dismissal without
> >> > the permission of Best Buy Inc.
> >>
> >> There is no such thing as "filing an unvoluntary dismissal".
> >
> > Uh retard dak.
> >
> > http://en.wikipedia.org/wiki/Involuntary_dismissal
> >
> > "Involuntary dismissal is the termination of a court case despite the
> > plaintiff's objection.
> 
> And just how (and why) would a plaintiff actually _file_ an involuntary
> dismissal?  I never said there _was_ no such thing as an involuntary
> dismissal, but it certainly can't be _filed_ by a party.

Defendant is also a party, oh paragon of GNU intellegence dak. Such
filing is called "a motion for involuntary dismissal" v. "a motion for
voluntary dismissal". Got it now, uh silly dak. 

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

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Re: SFLC is SOL

[RJack]

David Kastrup wrote:

Alexander Terekhov  writes:


David Kastrup wrote: [...]

This means that the SFLC cannot file a vouluntary dismissal
without the permission of Best Buy Inc.

There is no such thing as "filing an unvoluntary dismissal".

Uh retard dak.

http://en.wikipedia.org/wiki/Involuntary_dismissal

"Involuntary dismissal is the termination of a court case despite
the plaintiff's objection.


And just how (and why) would a plaintiff actually _file_ an
involuntary dismissal?  I never said there _was_ no such thing as an
involuntary dismissal, but it certainly can't be _filed_ by a party.



If you are so smart at interpreting the Federal Rules of Civil
Procedure, why are you so dumb at grasping doctrines like preemption
and promissory estoppel?

Could it be that you actually know the GPL is preempted and thus GPL
code is quasi-public domain due to promissory estoppel? Perhaps your
feigned ignorance is just stubbornness (like Hyman Rosen)?

Sincerely,
RJack :)
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Re: SFLC is SOL

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
> [...]
>> > This means that the SFLC cannot file a vouluntary dismissal without
>> > the permission of Best Buy Inc.
>> 
>> There is no such thing as "filing an unvoluntary dismissal".  
>
> Uh retard dak.
>
> http://en.wikipedia.org/wiki/Involuntary_dismissal
>
> "Involuntary dismissal is the termination of a court case despite the
> plaintiff's objection.

And just how (and why) would a plaintiff actually _file_ an involuntary
dismissal?  I never said there _was_ no such thing as an involuntary
dismissal, but it certainly can't be _filed_ by a party.

-- 
David Kastrup
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Re: SFLC is SOL

[Alexander Terekhov]

David Kastrup wrote:
[...]
> > This means that the SFLC cannot file a vouluntary dismissal without
> > the permission of Best Buy Inc.
> 
> There is no such thing as "filing an unvoluntary dismissal".  

Uh retard dak.

http://en.wikipedia.org/wiki/Involuntary_dismissal

"Involuntary dismissal is the termination of a court case despite the
plaintiff's objection.

In United States Federal courts, involuntary dismissal is governed by
Federal Rules of Civil Procedure (FRCP) Rule 41(b).

Involuntary dismissal is made by a defendant through a motion for
dismissal, on grounds that plaintiff is not prosecuting the case, is not
complying with a court order, or to comply with the Federal Rules of
Civil Procedure.

Involuntary dismissal can also be made by order of the judge when no
defendant has made a motion to dismiss. Involuntary dismissal is a
punishment that courts may use when a party to a case is not acting
properly. Other punishments are found in FRCP Rule 11, Federal Rules of
Appellate Procedure Rule 38, sections 1927 and 1912 of Title 28 United
States Code, and inherent powers of the court.

Involuntary dismissal bars the case from being brought to court again,
unless the judge says otherwise.

State court rules may be different than the Federal rules and vary from
state to state.

Full Text of FRCP 41(b):

(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff
to prosecute or to comply with these rules or any order of court, a
defendant may move for dismissal of an action or of any claim against
the defendant. Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal not
provided for in the rules, other than a dimissal for lack of
jurisidicition, for improper venue, or for failure to join a party under
Rule 19, operates as an adjudication on the merits. "

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  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  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: SFLC is SOL

[Alexander Terekhov]

RJack wrote:
> 
> The SFLC has finally bought itself a shit-load of trouble. Five of
> fourteen defendants' ANSWERS TO COMPLAINT are up on the SDNY PACER site.

It's actually more than five in the meantime:

03/08/2010 62  ANSWER to Complaint with JURY DEMAND. Document filed by
Westinghouse Digital Electronics, LLC.(Fleming, Kyle) (Entered:
03/08/2010) 
03/08/2010 64  ANSWER to Complaint with JURY DEMAND., COUNTERCLAIM
against all plaintiffs. Document filed by Best Buy Co., Inc..(Leichtman,
David) (Entered: 03/08/2010) 
03/08/2010 66  ANSWER to Complaint with JURY DEMAND. Document filed by
Versa Technology Inc..(Zimmerman, Philippe) (Entered: 03/08/2010) 
03/08/2010 67  ANSWER to Complaint. Document filed by Robert Bosch
LLC.(Roth, Judith) (Entered: 03/08/2010) 
03/08/2010 70  ANSWER to Complaint. Document filed by JVC Americas
Corporation.(Yohai, David) (Entered: 03/08/2010) 
03/08/2010 73  ANSWER to Complaint. Document filed by Dobbs-Stanford
Corporation.(Heinrich, Justin) (Entered: 03/08/2010) 
03/08/2010 75  ANSWER to Complaint with JURY DEMAND. Document filed by
Comtred Corporation. (Attachments: # 1 Certificate of Service)(Kirsch,
Emily) (Entered: 03/08/2010 76  ANSWER to Complaint with JURY DEMAND.
Document filed by Astak Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010) 
03/08/2010 77  ANSWER to Complaint with JURY DEMAND. Document filed by
ZYXEL Communications Inc.. (Attachments: # 1 Certificate of
Service)(Kirsch, Emily) (Entered: 03/08/2010) 
03/08/2010 78  ANSWER to Complaint with JURY DEMAND. Document filed by
Western Digital Technologies, Inc..(Marvin, Lynn) (Entered: 03/08/2010) 
03/08/2010 79  ANSWER to Complaint with JURY DEMAND. Document filed by
Humax USA Inc..(Pak, Eugene) (Entered: 03/08/2010) 

regards,
alexander.

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

Hyman Rosen  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  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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