Re: GPL and LGPL issues for LCC, or lack thereof

["Michael K. Edwards" <m.k.edwards@gmail.com>]

I'll try to address the Specht case and summarize, and we can call
this an end to the discussion if that's what you want.

Bruce>  You can read a case on the nature of consent such as Specht v. Netscape,
Bruce> which might convince you that we don't necessarily get
sufficient consent on
Bruce> the licenses that we distribute for them to bind as contracts.

Specht v. Netscape 2001 (if we are talking about
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF )
relies on a theory of final (retail) sale under the California version
of the Uniform Commercial Code.  The opinion doesn't even contain the
word "copyright".

If you want to argue that the Specht case applies to a distro's or an
ISV's use of LGPL code, then you are saying that the (L)GPL isn't
enforceable at all in the US unless the copyright holder takes
technical measures to require all recipients to read the license. 
Even this probably isn't true, because what distro or ISV can
plausibly claim to be ignorant of the (L)GPL, as the Specht plaintiffs
claimed to be ignorant of the arbitration clause in Netscape's
license?

Here's a precis of those "volumes of contract cases" (two actually,
for which I gave the URLs, both addressing copyright licenses), plus
Specht:

        LGPL an "illusory" contract (a factual question, the criteria
for which are discussed in Fosson)
     or not enough consent to bind as contract (a factual question,
discussed in Specht)
 => no contract
 => copyright law applies, and in the absence of a positive defense
such as fair use, likely to succeed on merits.

Alternately,
         valid contract
    and violation of terms (a factual question, Sun)
 => likely to succeed on merits;
         likely to succeed on merits
     and terms are license restrictions (vs. contractual covenants, a
factual question, Sun) => conduct is outside license and copyright law
applies.

     Copyright law applies
 => automatic presumption of irreparable harm;
         Irreparable harm
     and likely to succeed on merits
 => preliminary injunction.

That's the entire scope of what I claim to have read in those
appellate decisions.  If it's correct, the only open question is
whether the limits on the exception granted in LGPL Section 6 permit
the hypothesized conduct of the ISV and/or the distro.  The remaining
factual issues do appear to me to be clear in the LGPL (the Fosson
criteria succeed and Specht doesn't fit the facts), but don't even
affect the conclusion (both "contract" and "no contract" cases are
covered).

You also claim that the LGPL doesn't require constructive availability
of tools required to exercise the right to modify, that the (L)GPL is
a unilateral and unconditional grant of rights under some theory other
than contract, and that the act of "distribution" is somehow separable
from the terms of a commercial software license.  I believe that I
have already adequately refuted these assertions.  Did I miss any
other arguments?

Cheers,
- Michael