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Re: What is source ?

Subject: Re: What is source ?
From: David Kastrup
Date: Mon, 14 Aug 2006 10:25:38 +0200
Newsgroups: gnu.misc.discuss
Alexander Terekhov <terekhov@xxxxxx> writes:

> David Kastrup wrote:
> [...]
>> The only person with standing to sue anybody over non-compliance with
>> the GPL is the copyright holder himself.
>
> Each party to the GPL contract can sue for non-compliance, retard.

Non-compliance with which obligations, my dearest Alexander?

I quote again (sorry for the shouting, but it is in the original):

                                NO WARRANTY

      11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO
    WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE
    LAW.  EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT
    HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT
    WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT
    NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
    FITNESS FOR A PARTICULAR PURPOSE.  THE ENTIRE RISK AS TO THE
    QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU.  SHOULD THE
    PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY
    SERVICING, REPAIR OR CORRECTION.

      12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO
    IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY
    MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE
    LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL,
    INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR
    INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF
    DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU
    OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY
    OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN
    ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

> -----
> An intellectual property license is a contract.

But we are talking about a "license" which _reduces_ the default
rights of the recipient, which actually is a perversion of the term
"license", and tries to gain contractual status with "click-through"
provisions.

In contrast, the GPL states clearly:

      5. You are not required to accept this License, since you have
    not signed it.  However, nothing else grants you permission to
    modify or distribute the Program or its derivative works.  These
    actions are prohibited by law if you do not accept this License.
    Therefore, by modifying or distributing the Program (or any work
    based on the Program), you indicate your acceptance of this
    License to do so, and all its terms and conditions for copying,
    distributing or modifying the Program or works based on it.


> In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th
> Cir. 2003) (âIf a breach of contract (and a copyright license is
> just a type of contract) . . . â); see also McCoy v. Mitsuboshi
> Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) (âWhether express
> or implied, a license is a contract").  -----

Anyway, even if your interpretation of the license as being a covert
contract (although it explicitly states that you are not required to
accept it, unlike the Aimster case) were correct, the contractual
obligations of the copyright holder are squat, as explicitly expressed
in the GPL.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum

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