Jerry Rosenthal requests that Microsoft name the patents that are being infringed by open source. Of course, to avoid charges of hypocracy, Rosenthal is going to point to the Microsoft applications which infringe specific OIN patents. . .
The original licensors of GPL'd BusyBox software have no standing to sue for material breach of the GPL license.
The SFLC complaint drafted against Monsoon Media claims in part:
"8. Under the License, Plaintiffs grant certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each licensee, states:
You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."
A careful review of the GPL license reveals that the intended beneficiaries are "all third parties" [sec. 2(b)] - not the original licensor(s). The complaint asks rescission of the license based on copies of the source code not being made available to potential recipients ("all third parties").
In the Monsoon case, in order to claim rescission of the GPL the original licensors are basing their standing to do so on the basis an injury to "all third parties" such that they do not receive source code. The licensors in their own persons have suffered no "injury in fact" in order to confer standing to sue for breach of contract and rescission. Only the (unidentified) injured third party beneficiaries may sue for the failure to make source code available.
"Standing" means that a plaintiff has a personal stake in the outcome of a dispute sufficient to obtain judicial resolution of that controversy. The concept focuses on whether the litigant is the proper party to fight the lawsuit, and requires the plaintiff to be injured or have been threatened with injury. In other words, no party is entitled to argue an action unless he himself is adversely affected by it. BLACK'S LAW DICTIONARY, 1413 (7th ed. 1999).
"2) Redistributing verbatim source packages as released by the developer, no contract is formed (bare license)."
***
All IP license are contracts under U.S. common law including the unilateral contract that is know as a "bare license".
GPL blowhards like Eben Moglen and Bruce Perens have forever claimed the GPL is a "license not a contract". The Jacobsen decision firmly rebuts that claim. A recursive copyright license (see GPL sec. 2(b)) such as the GPL absolutely *does* attempt to bind all third parties who use the licensed code. The GPL is DOA in any U.S. Federal Court.
Without specifying the legal jurisdiction (which country's copyright laws) this thread is just legal babble.
Under U.S. law the GPL is a preempted (17 USC 301(a)) copyright
contract that attempts to regulate "all third parties" sec. 106 rights. That is why the FSF will never risk a direct U.S. court interpretation of the GPL.
The Jacobsen v. Katzer, No. 3:06-cv-01905 (N.D. Cal. Aug. 17, 2007) decision is only the opening salvo in the death of open source dreams for "free" software.
Title 17 - COPYRIGHTS Chapter 2 - Copyright Ownership and Transfer Sec. 205. Recordation of transfers and other documents(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License. - A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument SIGNED by the owner of the rights licensed or such owner's duly authorized agent, and if - (1) the license taken before execution of the transfer; or (2) the license was taken in good faith before recordation of transfer and without notice of it.
Everything contributed by Caldera etc. to Linux under the UNSIGNED nonexclusive GPL prior to the present SCO's purchase (transfer of ownership) from Novell is eliminated by sec 205(e) from the protection of the GPL under the Copyright Act.The GPL is a binding contract held in public trust though. So SCO still loses. IBM knows this e.g. read their Amended Counterclaims.
TILE 17 - COPYRIGHTS CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER Sec. 205. Recordation of transfers and other documents (e) Priority Between Conflicting Transfer of Ownership and Nonexclusive License. - A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed or such owner's duly authorized agent, and if - (1) the license was taken before execution of the transfer; or (2) the license was taken in good faith before recordation of
the transfer and without notice of it.
Suppose I contribute my copyrighted software code files to Linux under the nonexclusive GPL license. Let's say Linus accepts my files of code into the kernel.
Later I transfer my exclusive copyrights in writing to Microsoft Corp. If you're using my kernel code and you don't have a copy of that GPL'd code signed in writing, what's to keep Microsoft from suing you for infringement of their code?
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Jerry Rosenthal requests that Microsoft name the patents that are being infringed by open source. Of course, to avoid charges of hypocracy, Rosenthal is going to point to the Microsoft applications which infringe specific OIN patents. . .
The original licensors of GPL'd BusyBox software have no standing to sue for material breach of the GPL license.
The SFLC complaint drafted against Monsoon Media claims in part:
"8. Under the License, Plaintiffs grant certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each licensee, states:
You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."
A careful review of the GPL license reveals that the intended beneficiaries are "all third parties" [sec. 2(b)] - not the original licensor(s). The complaint asks rescission of the license based on copies of the source code not being made available to potential recipients ("all third parties").
In the Monsoon case, in order to claim rescission of the GPL the original licensors are basing their standing to do so on the basis an injury to "all third parties" such that they do not receive source code. The licensors in their own persons have suffered no "injury in fact" in order to confer standing to sue for breach of contract and rescission. Only the (unidentified) injured third party beneficiaries may sue for the failure to make source code available.
"Standing" means that a plaintiff has a personal stake in the outcome of a dispute sufficient to obtain judicial resolution of that controversy. The concept focuses on whether the litigant is the proper party to fight the lawsuit, and requires the plaintiff to be injured or have been threatened with injury. In other words, no party is entitled to argue an action unless he himself is adversely affected by it. BLACK'S LAW DICTIONARY, 1413 (7th ed. 1999).
"2) Redistributing verbatim source packages as released by the developer, no contract is formed (bare license)." *** All IP license are contracts under U.S. common law including the unilateral contract that is know as a "bare license".
GPL blowhards like Eben Moglen and Bruce Perens have forever claimed the GPL is a "license not a contract". The Jacobsen decision firmly rebuts that claim. A recursive copyright license (see GPL sec. 2(b)) such as the GPL absolutely *does* attempt to bind all third parties who use the licensed code. The GPL is DOA in any U.S. Federal Court.
Without specifying the legal jurisdiction (which country's copyright laws) this thread is just legal babble. Under U.S. law the GPL is a preempted (17 USC 301(a)) copyright contract that attempts to regulate "all third parties" sec. 106 rights. That is why the FSF will never risk a direct U.S. court interpretation of the GPL. The Jacobsen v. Katzer, No. 3:06-cv-01905 (N.D. Cal. Aug. 17, 2007) decision is only the opening salvo in the death of open source dreams for "free" software.
1. You obviously didn't comprehend. 2. It was supposed to be for the next post.
SCO is depending on a flaw in the GPL:
Title 17 - COPYRIGHTS
Chapter 2 - Copyright Ownership and Transfer
Sec. 205. Recordation of transfers and other
documents(e) Priority Between Conflicting Transfer
of Ownership and Nonexclusive License. - A
nonexclusive license, whether recorded or not,
prevails over a conflicting transfer of copyright
ownership if the license is evidenced by a written
instrument SIGNED by the owner of the rights
licensed or such owner's duly authorized agent,
and if -
(1) the license taken before execution of
the transfer;
or
(2) the license was taken in good
faith before recordation of transfer and without
notice of it.
Everything contributed by Caldera etc. to Linux
under the UNSIGNED nonexclusive GPL prior to the
present SCO's purchase (transfer of ownership)
from Novell is eliminated by sec 205(e) from the
protection of the GPL under the Copyright Act.The
GPL is a binding contract held in public trust
though. So SCO still loses. IBM knows this e.g.
read their Amended Counterclaims.
Here is:
TILE 17 - COPYRIGHTS
CHAPTER 2 - COPYRIGHT OWNERSHIP AND TRANSFER
Sec. 205. Recordation of transfers and other documents
(e) Priority Between Conflicting Transfer of Ownership and
Nonexclusive License. - A nonexclusive license, whether recorded or
not, prevails over a conflicting transfer of copyright ownership if
the license is evidenced by a written instrument signed by the
owner of the rights licensed or such owner's duly authorized agent,
and if -
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of
the transfer and without notice of it.
Suppose I contribute my copyrighted software code files to Linux
under the nonexclusive GPL license. Let's say Linus accepts my files
of code into the kernel.
Later I transfer my exclusive copyrights in writing to Microsoft Corp.
If you're using my kernel code and you don't have a copy of that GPL'd
code signed in writing, what's to keep Microsoft from suing you for
infringement of their code?