Date: Fri, 16 Feb 2007 23:19:31 -0500
From: Gene Heskett <gene.heskett@verizon.net>
Subject: Re: GPL vs non-GPL device drivers
In-reply-to: <f2b55d220702162003kbc7a16dxca4d97252e6f2050@mail.gmail.com>
To: linux-kernel@vger.kernel.org
Cc: "Michael K. Edwards" <medwards.linux@gmail.com>,
       "v j" <vj.linux@gmail.com>, "Theodore Tso" <tytso@mit.edu>,
       "Dave Jones" <davej@redhat.com>
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On Friday 16 February 2007, Michael K. Edwards wrote:
>On 2/15/07, Gene Heskett <gene.heskett@verizon.net> wrote:
>[ignorant silliness]
>
>> There is no one to my knowledge here, who would not cheer loudly once
>> a verdict was rendered because that courts decision would give the
>> FOSS community a quotable case law as to exactly what is, and is not
>> legal for you to do with GPL'd code.  We would after 16+ years of the
>> GPL, finally have a firm, well defined line drawn in the sand, a
>> precedence in US case law that at present, only exists in Germany.
>
>Oferchrissake.  We do have a US precedent, insofar as a decision in a
>court of fact on issues of fact can ever be a precedent in a common
>law system (hint: zero, unless the later judge feels like quoting some
>compelling prose).  That would be Progress Software v. MySQL (also
>known as MySQL v. NuSphere in some commentators' writings).  The FSF
>interpretation of the GPL lost.

Pacer citations please.

>Completely.  Which is true also of 
>the Munich and Frankfurt decisions.
>
>The plaintiffs, as authors of GPL works, got a full hearing in each
>case -- via routine reasoning about the GPL as an offer of contract,
>whose conditions either had (Progress Software) or had not
>(Fortinet/Sitecom and D-Link) been performed to the extent necessary
>for the defendant to claim license under the GPL.  MySQL did obtain a
>preliminary injunction, but on unrelated trademark license grounds;
>the GPL claim got them nowhere, for at least four distinct reasons
>stated in the opinion.  Harald's recovery was limited to statutory
>costs and, in the Munich case, an injunction to _either_ offer the
>source code of netfilter/iptables itself _or_ stop shipping product.
>Both German courts refused to find contract "in personam" (necessary
>to a breach of contract claim, in turn necessary to a demand for
>specific performance).
>
>"GPL is a creature of copyright law" lost in court, every time.
>"Section 4 is a limitation of scope, not a conditional performance"
>lost.  "You can lose your license irrevocably" lost.  "We can compel
>disclosure of source code with no alternative" lost.  "We can
>circumvent contract law standards of breach and remedy" lost.
>Everything RMS and Eben Moglen have ever written about the legal
>meaning of the GPL is wrong, and where "derivative works" are
>concerned, embarrassingly hypocritical as well.  Take the Big Lie
>elsewhere, please!
>
>- Michael


-- 
Cheers, Gene
"There are four boxes to be used in defense of liberty:
 soap, ballot, jury, and ammo. Please use in that order."
-Ed Howdershelt (Author)
Yahoo.com and AOL/TW attorneys please note, additions to the above
message by Gene Heskett are:
Copyright 2007 by Maurice Eugene Heskett, all rights reserved.
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