For Approval: GPLv3

[Donovan Hawkins]

On Sat, 1 Sep 2007, Alexander Terekhov wrote:

> http://lists.debian.org/debian-legal/2005/07/msg00582.html
> (reasonably concise "why did the FSF effectively lose in Progress v. MySQL")

I only see two additional points that post adds over what I said; 
everything else is consistant with either interpretation since this 
particular preliminary injunction should not have been granted either way.


1) The automatic termination clause of the GPL didn't kick in, and that 
shouldn't be affected by the correction of the infringement. He then 
argues that this is evidence of a contract law interpretation.

I don't know if I agree that a judge would find that permanent revocation 
of the license due to an infringement is consistent with the intent of a 
free license. It is not inconsistant with GPL v2 to assume the revokation 
ceases once the infringement is corrected, and indeed GPL v3 adds this 
explicitly.

If I paid for a license and got it revoked because I violated its terms, 
nothing would stop me from going back to the copyright owner and 
purchasing another license. What is to stop you from doing the same with a 
free license (which is trivially granted without even asking)?


2) The judge did not grant the plaintiff an assumption of irreparable harm 
as should be granted under copyright law.

Of course, in the recent Artistic License case the judge DID grant that 
assumption, and then went on to conclude that the particular clauses of 
the license were contractual in nature. If the license had allowed no 
distribution of any kind (only use), there is every indication that the 
more recent judge would have ruled differently. That would be blatently 
outside the scope of the license, and not subject to the judge's 
interpretation of whether a condition is a scope limitation or a 
contractual covenant.


As for my personal opinion (IANAL), this issue looks like it will hinge on 
how the restrictions are interpreted by the judge. It may even come down 
to the specific wording used in the license.

---------------------------------------------------------------------------
Donovan Hawkins, PhD                 "The study of physics will always be
Software Engineer                     safer than biology, for while the
hawkins at cephira.com                   hazards of physics drop off as 1/r^2,
http://www.cephira.com                biological ones grow exponentially."
---------------------------------------------------------------------------