Automatic GPL termination
dlw
danw6144 at insightbb.com
Wed Sep 19 15:03:30 UTC 2007
My remark:
"How can present day Free Software believers wallow in the tripe that
Moglen spews? His goal is the destruction of 'intellectual property' in
commerce."
was expressing my incredulousness at the general mindset of the Free
Software worshipers concerning GPL2 and the "patenting busting" GPL3.
Moglen cites 5th Century Byzantine history as support for the GPL not
being a contract. Might as well cite little green men from Alpha Centuri .
The fact is U.S. statutory and case case law controls licensing for
intellectual property in US jurisdictions. Moglen invents fantasy legal
principles and his cult followers believe him.
Reality -- the GPL is a contract. The GPL is preempted by 17 USC sec.
301. The GPL is a misuse of copyright. The belief that a purported
copyright license can control patents is not based in reality.
Have you ever seen the Free Software Foundation cite U.S. case law
precedents implying the GPL is not a contract?
Eben Moglen made up the idea so as not to run afoul of the common law of
contracts. PJ ran a story on Groklaw citing
Moglen about why the GPL was not preempted because it was "a license not
a contract" and an urban legend was born
that persists to this day.
The OSI spouts similar nonsense concerning controlling "downstream"
evolving derivative works. The "downstream" derivative works certainly
involve more than just parties in privity. Where's the law supporting
such "downstream"claims? Any copyright contract that involves
controlling third party intellectual property rights at some point is
going to attract instant and automatic scrutiny from a district court
concerning 17 USC sec. 301 because jurisdictional questions arise.
Proper jurisdiction claims must exist for Federal Courts before any
merits are examined and a preempted contract claim fails jurisdiction.
Here's an excerpt from the recent JMRI Project Model Train decision:
"Although the state claims are subject to dismissal on the merits for
lack of standing and
for failure to state a claim upon which relief can be granted, the Court
also finds that the two
counts are preempted by federal copyright law, to the extent Plaintiff
makes out a claim for
copyright infringement.
Section 301 of the Federal Copyright Act provides in pertinent part:
all legal or equitable rights that are equivalent to any of the
exclusive rights
within the general scope of copyright ... are governed exclusively by
this title.
Thereafter, no person is entitled to any such right or equivalent right
in any
such work under the common law or statutes of any State.
17 U.S.C. § 301. The federal copyright preemption of overlapping state
law claims is “explicit
and broad.”
Supporters of open source license instantly forget the need to answer
with real statute and case law and when confronted
by critics citing legal principles. Open source defenders usually prefer
to resort to ridicule and name calling ("trolls") in lieu of rational
argument.
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