conducting a sane and efficient GPLv3, LGPLv3 Review
alexander.terekhov at gmail.com
Fri Aug 3 15:35:53 UTC 2007
On 8/3/07, Walter van Holst <w.van.holst at mitopics.nl> wrote:
> Van: Arnoud Engelfriet [arnoud at engelfriet.net]
> > Arnoud Engelfriet wrote:
> > >This presumes that the clause is severable and not so central
> > >to the whole GPL that the judge will hold the rest up, but
> > >that's the theory.
> >> Isn't the purpose of the preamble to make it very clear that this is the
> >> essence of the licence?
> >That's why I think the theory is unlikely to succeed. Nevertheless,
> >for people that disregard preambles as "just a bunch of whereasses"
> >the argument seems plausible as first glance.
> When writing contracts I sometimes spend more time on the subtleties of the
> preamble than on the description of the prestations precisely for the reason that the
> context of the contract can be as important as the contract itself. I tend to agree with
> you that this clause is so central to the GPL that it is not severable.
Two district courts in Germany applied that logic in Welte's GPL
cases. Here is Frankfurt judgement in English:
("the possibly invalid part [of the GPL] (Sec. 2 of the GPL) is
inseparably connected to the primary obligation, i.e. the grant of the
license ... incorporated into the contract by virtue of the preamble
of the GPL")
To me, it sounds really funny.
Dear Plaintiff, you're not barred from claiming invalidity of the
entire contract (due to antitrust or whatever violations in this or
that clause)... thank you for inducing others to break the law
(antitrust or whatever) and please don't forget to sue all other
parties to your entirely invalid contract and collect damages on the
grounds of copyright infringement from them as well.
("Defendant argues, the provisions of the GPL violate Article 81 EC
and Section 1 of the German Antitrust Act (GWB), in particular the
prohibition against price fixing and of
predetermining the conditions of secondary contracts in the first
contract. This would, according to Section 139 of the German Civil
Code (BGB), result in the invalidity of the entire license agreement
with the consequence that Defendant would not have a right of use in
the software at all, so that Plaintiff could file a copyright
infringement claim for that reason ... be entitled to plead invalidity
of the entire contract and therefore allege that Defendant is lacking
any license [to the three programs] whatsoever. ")
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