For Approval: GPLv3
Donovan Hawkins
hawkins at cephira.com
Sat Sep 1 17:19:13 UTC 2007
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.
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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."
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