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Re: Questions about legal theory behind (L)GPL

On Wed, 19 Jan 2005 11:28:33 -0500, Raul Miller <moth@debian.org> wrote:
> This is meta discussion about an oversimplification.  It's basically
> correct, but I don't think the emperor is running around nude, even if
> that hat is a bit skimpy.

I don't think claiming that contract law has no role in the
interpretation of the GPL is an oversimplification -- I think that,
coming from the FSF's General Counsel, it's grossly irresponsible. 
They don't seem to have a shred of precedent to point to, and the FSF
refuses inquiry on the point, nor can I find any indication that they
are willing to argue, in court or out, the applicability of the GPL to
the specifics of any set of facts and governing law.  The MySQL
affidavit isn't an anomaly -- it's characteristic.

With that said, they do an excellent job of preaching to the choir,
and the mere threat of preliminary injunction under copyright
standards seems to work for them dozens of times a year.  The one time
the GPL was litigated (note, not by the FSF), the plaintiff won an
injunction on trademark anyway.  Why expose their reasoning to further
scrutiny outside a courtroom?  That would just embolden the evil
software hoarders to do things that are legally permitted but contrary
to the copyleft Manifest Destiny.

But the FSF is going to lose a lot of credibility, even with the
choir, if they wait until their noses are rubbed in it in the next
lawsuit to admit that there isn't any universal "law of license" in
the real world after all.  Hint: it's not a coincidence that open
source companies and foundations with their own lawyers to advise them
are fortifying around trademark now.

- Michael

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