Glibc patent - Linux

This is a discussion on Glibc patent - Linux ; Go to clinic, Floyd. > The only one claiming here that there a breach of contract issue > with the GPL is *you*. http://www.gnu.org/philosophy/enforcing-gpl.html is simply legal nonsense. ====== Here's an email exchange with RMS: "I assume, however, that at ...

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Thread: Glibc patent

  1. Re: Glibc patent

    Go to clinic, Floyd.

    > The only one claiming here that there a breach of contract issue
    > with the GPL is *you*.


    http://www.gnu.org/philosophy/enforcing-gpl.html

    is simply legal nonsense.

    ======
    Here's an email exchange with RMS:

    "I assume, however, that at least some people want the GPL to be
    binding--nothing can make it binding except a claim of contract."

    http://lists.essential.org/upd-discuss/msg00131.html

    -- the respondent's email address resolves to:
    MICHAEL H. DAVIS, (Professor of Law) Cleveland State University.
    Education: Occidental College (B.A.,1967); Hofstra Law School (J.D.,
    1975); Harvard Law School (LL.M., 1979).

    ======
    Perhaps further consideration should be given to:

    "(A``non-contractual copyright permission'' would be some sort of
    license that does not involve a contract I suppose, but that is not
    a well defined term.)"

    http://lists.softwarelibero.it/piper...ebruary/000641...

    -- the respondent's email address resolves to:
    PETER D. JUNGER
    Professor of Law Emeritus
    Case Western Reserve University
    College: Harvard College, A.B. 1955
    Law School: Harvard Law School, LL.B. (magna cum laude) 1958

    ======
    How about this:

    "The GPL IS a contract. Calling it a license simply describes the type of
    contract it is."

    http://www.mail-archive.com/license-.../msg01522.html

    -- the respondent's email address resolves to:
    ROD DIXON J.D. LL.M.
    Visiting Assistant Professor of Law, Rutgers University School of Law,
    Camden, New Jersey, Fall 1999 to present.
    EDUCATION: LL.M. (with Distinction), Georgetown
    University Law Center, 1998. J.D., George Washington
    University Law School, 1992. M.A., University of
    Pittsburgh, Faculty of Arts and Sciences, 1986. B.A.,
    University of Pittsburgh, College of Arts and Sciences,
    1984.
    ======

    Moglen makes extraordinary claims about the GPL, so why doesn't he come
    forward with the appropriate legal citations? Moglen is a J.D. with a
    Ph.D. in history and not an LL.M. He would not even be accepted as
    qualified for Professorship at many institutions. What qualifies his word
    alone as "legal authority"?
    -----

    REPLY BRIEF IN SUPPORT OF DEFENDANT INTERNATIONAL BUSINESS
    MACHINES CORPORATION'S REASSERTED MOTION TO DISMISS (Wallace case):

    "as is evident from the ProCD case Plaintiff cites, copyrights may be
    licensed by a uniform contract effective against all who choose to use
    it. (Response at 6) (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
    1454 (7th Cir.1996).)

    [...]

    The GPL, like the shrinkwrap license in ProCD, is a license applicable
    to anyone who receives its terms and chooses to use it, and by using
    it, accepts the terms under which the software was offered. Id.."

    regards,
    alexander.

  2. Re: Glibc patent

    One just can't argue with GNUtians. Brainwashed totally. It's like
    trying to prove a negative. GNUtians postulate that pigs can fly and
    then expect you to disprove their claims. Here's Judge Newman of the
    United States Court of Appeals for the Federal Circuit on license: "A
    license is governed by the laws of contract. See McCoy v. Mitsuboshi
    Cutlery, Inc., 67 F.3d 917, 920, 36 USPQ2d 1289, 1291 (Fed. Cir. 1995)
    ("Whether express or implied, a license is a contract governed by
    ordinary principles of state contract law.")." Jazz Photo v. ITC,
    (CAFC) 264 F.3d 1094, August 21, 2001.

    regards,
    alexander.

  3. Re: Glibc patent


    Alexander Terekhov wrote:

    > JoelKatz wrote:


    > > And the flip side of this is that it is impossible to violate the GPL.


    > So how come that IBM is suing SCO for breach of the GPL contract?


    The are not. Are you familiar with the lawsuit at all? The vast
    majority of the claims are about breaching contracts that have nothing
    whatsoever to do with the GPL.

    > (Saying something about "nominal" contract damages and all that breach of
    > contract stuff...)


    Because IBM and SCO had a contract.

    > Eh, Katz?


    Read the suit. The contract they're talking about is an actual contract
    that licensed AIX.

    DS


  4. Re: Glibc patent


    Alexander Terekhov wrote:

    > IBM asserted two GPL (counter) claims. The first one was breach of
    > contract claim. I mean IBM's SIXTH COUNTERCLAIM Breach of the GNU
    > General Public License against SCO. No violation of the copyright
    > act is alleged. "SCO accepted the terms of the GPL... IBM is
    > entitled to a declaration that SCO's rights under the GPL terminated,
    > an injunction prohibiting SCO from its continuing and threatened
    > breaches of the GPL and an award of damages in an amount to be
    > determined at trial."


    This seems like nonsense to me. Assume for the sake of argument that
    SCO breached the GPL. In that case, the GPL would not grant them any
    rights. If the GPL does not grant you any rights, it also imposes no
    obligations on you. If the GPL imposes no obligations on you, how can
    you breach it?

    I think it is arguable that IBM might be entitled to a declaratory
    ruling that SCO is not complying with the terms of the GPL and
    therefore is not entitled to a license under it. In that case, they are
    violating copyright law by distributing works that they have no license
    to distribute. The GPL's role here would be in not providing them a
    license.

    I don't see why IBM would be an entitled to an unjunction prohibiting
    SCO from breaching the GPL, since that is impossible. The GPL says,
    "you get the right to do X if you do Y". That is impossible to breach.

    I think as soon as someone complies with the GPL and does something
    they do have the right to do any other way, the GPL is a binding
    contract. The only way out would be for the person to repudiate the GPL
    and take the consequences of his copyright infringement.

    The GPL's only real legal purpose is to serve as a defense to a claim
    of copyright infringement. If there were no copyright laws, the GPL
    would be a nullity, since you could just do all the things the GPL
    grants you the right to do anyway. (Unless you also entered into some
    contract not to do them, I suppose.)

    DS


  5. Re: Glibc patent


    JoelKatz wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > JoelKatz wrote:

    >
    > > > And the flip side of this is that it is impossible to violate the GPL.

    >
    > > So how come that IBM is suing SCO for breach of the GPL contract?

    >
    > The are not. Are you familiar with the lawsuit at all? The vast


    A little bit, so to speak. Apart from redacted stuff.

    > majority of the claims are about breaching contracts that have nothing
    > whatsoever to do with the GPL.


    Except that the GPL is one those allegedly breached contracts.

    >
    > > (Saying something about "nominal" contract damages and all that breach of
    > > contract stuff...)

    >
    > Because IBM and SCO had a contract.


    Exactly. The GPL contract.

    >
    > > Eh, Katz?

    >
    > Read the suit. The contract they're talking about is an actual contract
    > that licensed AIX.


    And also about an actual contract that licensed Linux ("One prominent
    example of free, open-source software is the Linux operating system, a
    derivative of the Unix operating system written by AT&T in the 1960s
    and now available without cost. (Unix® is a trademark of The Open
    Group, but the source code to many variants of AT&T’s work is freely
    available.) Linux is one of many modern derivatives of Unix—which is
    not itself under the GPL. Thus Apple Computer, which uses the Berkeley
    Software Distribution variant of Unix as the foundation for the Mac
    OS X operating system, is entitled to charge for its software. Linux,
    initially the work of Linus Torvalds, is maintained by a large open-
    source community. International Business Machines offers Linux with
    many of its servers, or customers can install it themselves. IBM has
    contributed code to the Linux project and furnishes this derivative
    work to anyone else with an interest" according to prolific and
    learned Chief Judge Frank Easterbrook).

    Eh, Katz?

    regards,
    alexander.

  6. Re: Glibc patent


    JoelKatz wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > IBM asserted two GPL (counter) claims. The first one was breach of
    > > contract claim. I mean IBM's SIXTH COUNTERCLAIM Breach of the GNU
    > > General Public License against SCO. No violation of the copyright
    > > act is alleged. "SCO accepted the terms of the GPL... IBM is
    > > entitled to a declaration that SCO's rights under the GPL terminated,
    > > an injunction prohibiting SCO from its continuing and threatened
    > > breaches of the GPL and an award of damages in an amount to be
    > > determined at trial."

    >
    > This seems like nonsense to me.


    Let IBM know about that.

    http://www.ibm.com/contact/us/

    regards,
    alexander.

  7. Re: Glibc patent

    Hadron Quark writes:
    > Rainer Weikusat writes:


    [...]

    >>>> Runtime-linking is basically an efficency hack and not a technically
    >>>> different procedure.
    >>>
    >>> How is it an efficiency hack? Define "efficiency" in this instance.

    >>
    >> Sorry, but if this isn't self-evident to you, than I suggest that you
    >> get yourself some introductory-style book and read that. I am not an
    >> interactive tutorial :-).

    >
    > No, please point your definition of efficiency : taking into account run
    > time over heads & problems with non matching libraries.


    As I have already written: If you honestly don't understand this, a
    lot of fairly accessible texts on the web will help. As for an
    advocacy debate: No interest.

    F'up2

  8. Re: Glibc patent

    Alexander Terekhov wrote:
    >A copyright license is a contract, stupid. The GPL is a bilateral
    >contract.


    You continue to misuse words. There is little point in continuing
    a discussion with someone who cannot distinguish between what someone
    says and what a dictionary says it is possible to mis interpret the
    same words to mean.


    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  9. Re: Glibc patent

    Alexander Terekhov wrote:
    >Go to clinic, Floyd.
    >
    >> The only one claiming here that there a breach of contract issue
    >> with the GPL is *you*.

    >
    >http://www.gnu.org/philosophy/enforcing-gpl.html
    >
    >is simply legal nonsense.


    If that is nonsense, why is it being upheld in one court after another,
    not to mention there just aren't many with enough bullheaded zeal like
    yours to even risk the legal whacking one gets for testing it.

    You are a fool.

    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  10. Re: Glibc patent

    On Fri, 01 Dec 2006 00:54:02 +0100, Alexander Terekhov wrote:

    > Go to clinic, Floyd.
    >
    >> The only one claiming here that there a breach of contract issue
    >> with the GPL is *you*.

    >
    > http://www.gnu.org/philosophy/enforcing-gpl.html
    >
    > is simply legal nonsense.



    Key word *philosophy*.
    The study of bull****.



    > ======
    > Here's an email exchange with RMS:
    >
    > "I assume, however, that at least some people want the GPL to be
    > binding--nothing can make it binding except a claim of contract."
    >
    > http://lists.essential.org/upd-discuss/msg00131.html
    >
    > -- the respondent's email address resolves to:
    > MICHAEL H. DAVIS, (Professor of Law) Cleveland State University.
    > Education: Occidental College (B.A.,1967); Hofstra Law School (J.D.,
    > 1975); Harvard Law School (LL.M., 1979).
    >
    > ======
    > Perhaps further consideration should be given to:
    >
    > "(A``non-contractual copyright permission'' would be some sort of
    > license that does not involve a contract I suppose, but that is not
    > a well defined term.)"
    >
    > http://lists.softwarelibero.it/piper...ebruary/000641...
    >
    > -- the respondent's email address resolves to:
    > PETER D. JUNGER
    > Professor of Law Emeritus
    > Case Western Reserve University
    > College: Harvard College, A.B. 1955
    > Law School: Harvard Law School, LL.B. (magna cum laude) 1958
    >
    > ======
    > How about this:
    >
    > "The GPL IS a contract. Calling it a license simply describes the type of
    > contract it is."
    >
    > http://www.mail-archive.com/license-.../msg01522.html
    >
    > -- the respondent's email address resolves to:
    > ROD DIXON J.D. LL.M.
    > Visiting Assistant Professor of Law, Rutgers University School of Law,
    > Camden, New Jersey, Fall 1999 to present.
    > EDUCATION: LL.M. (with Distinction), Georgetown
    > University Law Center, 1998. J.D., George Washington
    > University Law School, 1992. M.A., University of
    > Pittsburgh, Faculty of Arts and Sciences, 1986. B.A.,
    > University of Pittsburgh, College of Arts and Sciences,
    > 1984.
    > ======
    >
    > Moglen makes extraordinary claims about the GPL, so why doesn't he come
    > forward with the appropriate legal citations? Moglen is a J.D. with a
    > Ph.D. in history and not an LL.M. He would not even be accepted as
    > qualified for Professorship at many institutions. What qualifies his word
    > alone as "legal authority"?
    > -----
    >
    > REPLY BRIEF IN SUPPORT OF DEFENDANT INTERNATIONAL BUSINESS
    > MACHINES CORPORATION'S REASSERTED MOTION TO DISMISS (Wallace case):
    >
    > "as is evident from the ProCD case Plaintiff cites, copyrights may be
    > licensed by a uniform contract effective against all who choose to use
    > it. (Response at 6) (citing ProCD, Inc. v. Zeidenberg, 86 F.3d 1447,
    > 1454 (7th Cir.1996).)
    >
    > [...]
    >
    > The GPL, like the shrinkwrap license in ProCD, is a license applicable
    > to anyone who receives its terms and chooses to use it, and by using
    > it, accepts the terms under which the software was offered. Id.."
    >
    > regards,
    > alexander.



  11. Re: Glibc patent


    "Floyd L. Davidson" wrote:
    >
    > Alexander Terekhov wrote:
    > >Go to clinic, Floyd.
    > >
    > >> The only one claiming here that there a breach of contract issue
    > >> with the GPL is *you*.

    > >
    > >http://www.gnu.org/philosophy/enforcing-gpl.html
    > >
    > >is simply legal nonsense.

    >
    > If that is nonsense, why is it being upheld in one court after another,


    Which one court after another, oh very smart Floyd?

    Care to quote one court after another "uphelding" legal nonsense
    GPL-is-license-not-a-contract"?

    Start here:

    pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

    HONORABLE PATTI B. SARIS is on record with: "...

    regards,
    alexander.

  12. Re: Glibc patent


    "Floyd L. Davidson" wrote:
    >
    > Alexander Terekhov wrote:
    > >A copyright license is a contract, stupid. The GPL is a bilateral
    > >contract.

    >
    > You continue to misuse words. There is little point in continuing
    > a discussion with someone who cannot distinguish between what someone
    > says and what a dictionary says it is possible to mis interpret the
    > same words to mean.


    Uh retard.

    -------
    While a party that owns copyright rights is ordinarily entitled to pursue
    infringement claims against any third party who violates them, the courts
    have recognized that the rights and remedies available to copyright
    holders change significantly when the owner elects to give others a
    nonexclusive license to use such property. In that situation, the
    owner/user relationship is fundamentally different. Absent a license, the
    rights of the copyright holder are governed by statutory and common
    law rules applicable to such rights. With a license, however, the terms
    and covenants of the license establish the applicable rules. See
    Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990)
    (in granting a copyright license, the licensor gives up its right to sue
    the licensee for infringement).

    Recognizing that the existence of consensual licensing arrangements
    significantly changes the applicable rules and the expectations of the
    parties, federal courts have held that a party cannot normally pursue a
    copyright infringement action based upon the licensees breach of
    covenants in the license agreement. As a general rule, " if the
    [licensees] improper conduct constitutes a breach of a covenant
    undertaken by the licensee . . . and if such covenant constitutes an
    enforceable contractual obligation, then the licensor will have the
    cause of action for contract," not for copyright infringement. Graham
    v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
    Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
    (1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
    (D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey,
    698 F.2d 991, 993 (9th Cir. 1983):

    [A] case does not arise under the federal copyright laws . . . merely
    because the subject matter of the action involves or affects a copyright.
    -------

    regards,
    alexander.

  13. Re: Glibc patent

    Alexander Terekhov wrote:
    >"Floyd L. Davidson" wrote:
    >>
    >> Alexander Terekhov wrote:
    >> >Go to clinic, Floyd.
    >> >
    >> >> The only one claiming here that there a breach of contract issue
    >> >> with the GPL is *you*.
    >> >
    >> >http://www.gnu.org/philosophy/enforcing-gpl.html
    >> >
    >> >is simply legal nonsense.

    >
    >> If that is nonsense, why is it being upheld in one court after another,


    If it isn't, then you'll be able to show us a list from the
    *many* that Moglen has gone after who have managed to get a
    court to say they were right. Smart folks *don't* go to court
    with Moglen, for a very good reason.

    >Which one court after another, oh very smart Floyd?


    Ask D-Link there in Germany about testing the GPL in a court of law!

    >Care to quote one court after another "uphelding" legal nonsense
    >GPL-is-license-not-a-contract"?
    >
    >Start here:
    >
    >pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
    >
    >HONORABLE PATTI B. SARIS is on record with: "...


    You have a wonderful knack for making claims that your cites and
    quotes simply do *not* support. That is another one.

    The judge bound the case over for trial rather than issue an
    injunction. Guess what... the defendant didn't want to go to
    trial, and settled.

    That has been the usual action, because very few people are so
    dense as to think the GPL isn't going to be upheld. And those
    who actually have pushed it, lost.

    Regardless, injunctions *have* been granted:

    gpl-violations.org preliminary injunction granted, vs. Fortinet UK Ltd.

    You need to read this carefully,

    http://www.gnu.org/philosophy/enforcing-gpl.html

    and if you want to dismiss it again, then show us where Moglen
    has *failed* to be able to enforce the GPL.


    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  14. Re: Glibc patent

    Alexander Terekhov wrote:
    >"Floyd L. Davidson" wrote:
    >>
    >> Alexander Terekhov wrote:
    >> >A copyright license is a contract, stupid. The GPL is a bilateral
    >> >contract.

    >>
    >> You continue to misuse words. There is little point in continuing
    >> a discussion with someone who cannot distinguish between what someone
    >> says and what a dictionary says it is possible to mis interpret the
    >> same words to mean.

    >
    >Uh retard.


    In addition to being absolutely unable to cite or quote meaningful
    references (I did not check out the one below, but given your record
    so far of abusing a dictionary, I see no point in doing so), you have
    some need to lower yourself to abjectly foolish levels of name calling.

    Shame on you. You *totally* lack credibility, and *nothing* you
    say is going to be taken seriously, regardless of what it appears to
    mean on the surface.

    >-------
    >While a party that owns copyright rights is ordinarily entitled to pursue
    >infringement claims against any third party who violates them, the courts
    >have recognized that the rights and remedies available to copyright
    >holders change significantly when the owner elects to give others a
    >nonexclusive license to use such property. In that situation, the
    >owner/user relationship is fundamentally different. Absent a license, the
    >rights of the copyright holder are governed by statutory and common
    >law rules applicable to such rights. With a license, however, the terms
    >and covenants of the license establish the applicable rules. See
    >Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990)
    >(in granting a copyright license, the licensor gives up its right to sue
    >the licensee for infringement).
    >
    >Recognizing that the existence of consensual licensing arrangements
    >significantly changes the applicable rules and the expectations of the
    >parties, federal courts have held that a party cannot normally pursue a
    >copyright infringement action based upon the licensees breach of
    >covenants in the license agreement. As a general rule, " if the
    >[licensees] improper conduct constitutes a breach of a covenant
    >undertaken by the licensee . . . and if such covenant constitutes an
    >enforceable contractual obligation, then the licensor will have the
    >cause of action for contract," not for copyright infringement. Graham
    >v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
    >Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
    >(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
    >(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey,
    >698 F.2d 991, 993 (9th Cir. 1983):
    >
    >[A] case does not arise under the federal copyright laws . . . merely
    >because the subject matter of the action involves or affects a copyright.
    >-------
    >
    >regards,
    >alexander.


    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  15. Re: Glibc patent


    "Floyd L. Davidson" wrote:
    [...]
    > Ask D-Link there in Germany about testing the GPL in a court of law!


    Are you ready for KO, Floyd?

    "DISTRICT COURT OF FRANKFURT AM MAIN On behalf of the people JUDGMENT"

    "The GPL grants anyone who enters into such contract with the licensor"

    "Since the conditions of the license granted by the GPL are easily
    available on the Internet, they were without a doubt incorporated
    into the contractual relationship between the authors and Defendant
    (Section 305, Subsection 2, No.2 of the German Civil Code (BGB))."

    "invalidity of this part of the GPL would also jeopardize the further
    development of the software and therefore affect the basic principle
    of open source, which is incorporated into the contract by virtue of
    the preamble of the GPL (cf. Annex K11)."

    "Plaintiff would also be entitled to plead invalidity of the entire
    contract"

    "Plaintiff, or the licensors from whom Plaintiff derives his right,
    have not violated any contractual obligations themselves. Rather,
    Defendant, who violated contractual obligations, relies on rights
    granted by contract."

    "Plaintiff would not be not barred from claiming invalidity of the
    entire contract."

    regards,
    alexander.

  16. Re: Glibc patent


    Alexander Terekhov wrote:

    > > This seems like nonsense to me.


    > Let IBM know about that.


    > http://www.ibm.com/contact/us/


    I'm pretty sure they know. It's just defensive lawyering. If the other
    side raises an argument, even if it's nonsense, make sure you've
    already pointed out that it supports your position more than theirs.

    DS


  17. Re: Glibc patent

    Alexander Terekhov wrote:
    >"Floyd L. Davidson" wrote:
    >[...]
    >> Ask D-Link there in Germany about testing the GPL in a court of law!

    >
    >Are you ready for KO, Floyd?


    It KO's your entire argument.

    --
    Floyd L. Davidson
    Ukpeagvik (Barrow, Alaska) floyd@apaflo.com

  18. Re: Glibc patent


    JoelKatz wrote:
    >
    > Alexander Terekhov wrote:
    >
    > > > This seems like nonsense to me.

    >
    > > Let IBM know about that.

    >
    > > http://www.ibm.com/contact/us/

    >
    > I'm pretty sure they know. It's just defensive lawyering. If the other
    > side raises an argument, even if it's nonsense, make sure you've
    > already pointed out that it supports your position more than theirs.
    >
    > DS


    You mean that

    --------
    Summary judgment is appropriate on IBM’s Sixth Counterclaim, unless IBM
    demonstrates a genuine issue of material fact as to the existence of a
    breach of the GPL. See Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d
    1373, 1378 (10th Cir. 1988). In its Seventh Counterclaim, IBM alleges
    that it relied on SCO’s promise not to breach the GPL. Accordingly, in
    order to survive summary judgment on this counterclaim, IBM must
    demonstrate an issue of fact as to the existence of a breach of the GPL.
    See Tolboe Constr. Co. v. Staker Paving & Const. Co., 682 P.2d 843,
    845-46 (Utah 1984) (addressing elements of a promissory estoppel claim
    under Utah state law). Restatement of Contracts § 90 (allowing remedy
    for “breach” of promise “as justice requires”).1

    The copyright cases expressly discussing the issue have rejected the
    notion of “retroactive” breach, termination and infringement. In MCA
    Television, Ltd. v. Public Interest Corp., 171 F.3d 1265 (11th Cir.
    1999), for example, the court explained:

    The notion that MCA had the power retroactively to rescind the contract
    makes a mockery of that contractual agreement and would put any
    contracting party in PIC’s position in terror of upsetting the licensor
    in any way for fear of being declared in breach, having the contracted-
    for licenses “retroactively revoked,” and being sued both for breach of
    contract and in copyright for statutory damages that can far outweigh
    contractually negotiated licensing fees.

    Id. at 1274 n.8; see also Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749,
    753 (11th Cir. 1997) (holding that one party’s breach does not
    automatically rescind a contract simply because that breach might give
    the other party the right to rescind); 3 Melvin B. Nimmer, Nimmer on
    Copyright § 10.15[A] at 10-120 (2004) (“[T]he license is terminated and
    the copyright proprietor may hold his former grantee liable as an
    infringer for subsequent use of the work. Failing such rescission . . .
    the grant continues in place . . . until such time as the copyright
    owner exercises his entitlement to rescind.”).

    It is a “well settled principle that where a contract is susceptible of
    two interpretations, preference will be given to the interpretation which
    does not violate the law.” Bd. of Dirs. And Officers, Forbes Fed. Credit
    Union v. Nat’l Credit Union Admin., 477 F.2d 777, 784 (10th Cir. 1973);
    accord NLRB v. Local 32B-32J Serv. Employees Int’l Union, 353 F.3d 197,
    202 (2d Cir. 2003); Guthart v. White, 263 F.3d 1099, 1104 (9th Cir. 2001).
    Accordingly, the Court should not construe the GPL as IBM suggests.
    --------

    is nonsense? IBM didn't really challenge it. After all, the GPL being a
    contract is "material fact". No? Note that IBM didn't challenge it.
    (IBM's citations of law in support of this fact aside for a moment).

    regards,
    alexander.

  19. Re: Glibc patent


    "Floyd L. Davidson" wrote:
    >
    > Alexander Terekhov wrote:
    > >"Floyd L. Davidson" wrote:
    > >[...]
    > >> Ask D-Link there in Germany about testing the GPL in a court of law!

    > >
    > >Are you ready for KO, Floyd?

    >
    > It KO's your entire argument.


    It being what? Keep hallucinationg, Floyd. You can relax now. :-)

    regards,
    alexander.

  20. Re: Glibc patent


    Alexander Terekhov wrote:

    > Summary judgment is appropriate on IBM's Sixth Counterclaim, unless IBM
    > demonstrates a genuine issue of material fact as to the existence of a
    > breach of the GPL. See Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d
    > 1373, 1378 (10th Cir. 1988). In its Seventh Counterclaim, IBM alleges
    > that it relied on SCO's promise not to breach the GPL. Accordingly, in
    > order to survive summary judgment on this counterclaim, IBM must
    > demonstrate an issue of fact as to the existence of a breach of the GPL.
    > See Tolboe Constr. Co. v. Staker Paving & Const. Co., 682 P.2d 843,
    > 845-46 (Utah 1984) (addressing elements of a promissory estoppel claim
    > under Utah state law). Restatement of Contracts § 90 (allowing remedy
    > for "breach" of promise "as justice requires").1


    Ahh, I get it now. When they say "breach of the GPL" they are simply
    shortening "breach of SCO's promise to comply with the GPL".
    Presumably, SCO actually made a promise to comply with the GPL
    somewhere.

    If you in fact promise to comply with the GPL, you can breach that
    promise by not complying with the GPL.

    If I say, "if you give me ten dollars, I'll tell you what time it is",
    how can you "breach" that? That's what the GPL does, it says "if you do
    X, you get permission to do Y". If you do Y without permission, you're
    not breaching that offer, you're simply doing something you have no
    right to do. If you had the right to do it some other way, your failure
    to do X wouldn't be a breach of anything.

    On the other hand, if you say "okay", and then don't do X, that's
    another story.

    You can breach a promise to comply with the GPL. And one could shorten
    that to "breach the GPL" for convenience.

    DS


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