(OT) - Major Blow to Copyleft Theory

[Marc Whipple]

-----Original Message-----
From: Arnoud Engelfriet [mailto:arnoud at engelfriet.net] 
Sent: Monday, August 27, 2007 9:34 AM
To: Michael Poole
Cc: license-discuss at opensource.org
Subject: Re: (OT) - Major Blow to Copyleft Theory

Michael Poole wrote:
>> Does such a distinction exist under civil law?  If not, the
difference
>> in contract formation may not be relevant.  Judging from Harald
>> Welte's gpl-violations.org efforts, specific performance is an
>> available remedy under German law.

>As far as I know, specific performance is a routine remedy
>under European civil law. You promised to do X, and you
>did not, so the court now makes you do X. Under penalty of
>daily fines if necessary.

>I've never understood the reason why specific performance is
>something special under common law.


IIRC, the basic historical background as to why specific performance is
a non-preferred remedy is that the purpose of the common law in this
regard is to make the victim whole. If money can do that, the remedy
should be monetary, so as to minimize the impact on the breaching party,
allow them to get on with productive activity and avoid forcing someone
to do something they do not want to do and/or participate in a
relationship they do not want to continue. 

The imposition of action on free citizens is looked upon with disfavor
by common law courts. Specific performance in terms of purchasing unique
items like artworks or real estate for instance, is much more common
than in terms of forcing people to perform services, especially but not
limited to fungible services. 

M