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Re: RES: What makes software copyrightable anyway?

On 5/18/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/18/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > Hey, you were the one who claimed that the assertion "a license is a
> > provision in a contract" conflicted with the cases cited in my
> > previous e-mail.  I repeat, what conflict did you have in mind,
> > exactly?
> I did?  I can't find that assertion.

You didn't look very hard:
> > No, a license is an individual provision in a contract, whether
> > explicit or implied.
> Could you provide a citation on that?  This seems to
> conflict with the usages I'm familiar with, including
> those in the urls you mentioned at
> > http://lists.debian.org/debian-legal/2005/01/msg00621.html

> Maybe you're talking about this exchange (text cut down
> and paraphrased.for readability):
> R: GPL is a license or a license agreement
> M: No.  License is a provision in a contract
> R: Could you provide a cite?  That conflicts with [what I know]

Nice.  Very nice.  Anyone else care to comment on this "paraphrase"?

> > Does it help if I concede that sometimes a judge uses the word
> > "license" to refer to the whole agreement, not just the provision
> > granting certain rights from licensor to licensee?
> Yes, that helps in the sense that it more closely corresponds
> with reality as I know it.

Nice how you clipped this:

> > (Not, mind you,
> > when it's particularly important to the case at hand, as when
> > analyzing the "scope of license" -- a judge who makes that error gets
> > overruled on appeal, which is embarrassing.)

If you can't keep track of that one, you're probably going to keep
contending that the "scope of license" involves a complete analysis of
both parties' conduct under some standard you pull out of thin air. 
Well, you're going to keep contending that anyway, but for those
reading along at home, it's bullshit.

> > Would you consider  conceding, in return, that you can't find
> > any court decision that applied some legal theory other than
> > contract in order to analyze the scope and effect of a license,
> > and it's not for lack of trying?
> No, I will not.
> Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
> example of a court decision that applied some legal theory
> other than contract in order to analyze the scope and
> effect of a license.

Yeah, I already corrected you on that one.  I very much doubt that
you've even read the decision, and you certainly have made no attempt
to substantiate your claim about the reasoning it contains.  I don't
know why I even bother at this point -- I doubt that there's a single
debian-legal reader who both is permeable to reasoning and believes
that your statements are founded in fact and law.  If that reader
exists, now would be a good time to speak up.

- Michael

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