Subject: RE: Automatic GPL termination
From: dlw <danw6144@insightbb.com>
Date: Wed, 19 Sep 2007 11:03:30 -0400


My remark:

"How can present day Free Software believers wallow in the tripe that 
Moglen spews? His goal is the destruction of 'intellectual property' in 
commerce."

was expressing my incredulousness at the general mindset of the Free 
Software worshipers concerning GPL2 and the "patenting busting" GPL3. 
Moglen cites 5th Century Byzantine history as support for the GPL not 
being a contract. Might as well cite little green men from Alpha Centuri .

The fact is U.S. statutory and case case law controls licensing for 
intellectual property in US jurisdictions. Moglen invents fantasy legal 
principles and his cult followers believe him.

Reality -- the GPL is a contract. The GPL is preempted by 17 USC sec. 
301. The GPL is a misuse of copyright. The belief that a purported 
copyright license can control patents is not based in reality.

Have you ever seen the Free Software Foundation cite U.S. case law 
precedents implying the GPL is not a contract?
Eben Moglen made up the idea so as not to run afoul of the common law of 
contracts. PJ ran a story on Groklaw citing
Moglen about why the GPL was not preempted because it was "a license not 
a contract" and an urban legend was born
that persists to this day.

The OSI spouts similar nonsense concerning controlling "downstream" 
evolving derivative works. The "downstream" derivative works certainly 
involve more than just parties in privity. Where's the law supporting 
such "downstream"claims? Any copyright contract that involves 
controlling third party intellectual property rights at some point is 
going to attract instant and automatic scrutiny from a district court 
concerning 17 USC sec. 301 because jurisdictional questions arise. 
Proper jurisdiction claims must exist for Federal Courts before any 
merits are examined and a preempted contract claim fails jurisdiction.

Here's an excerpt from the recent JMRI Project Model Train decision:

"Although the state claims are subject to dismissal on the merits for 
lack of standing and
for failure to state a claim upon which relief can be granted, the Court 
also finds that the two
counts are preempted by federal copyright law, to the extent Plaintiff 
makes out a claim for
copyright infringement.

Section 301 of the Federal Copyright Act provides in pertinent part:
all legal or equitable rights that are equivalent to any of the 
exclusive rights
within the general scope of copyright ... are governed exclusively by 
this title.
Thereafter, no person is entitled to any such right or equivalent right 
in any
such work under the common law or statutes of any State.
17 U.S.C. § 301. The federal copyright preemption of overlapping state 
law claims is “explicit
and broad.”

Supporters of open source license instantly forget the need to answer 
with real statute and case law and when confronted
by critics citing legal principles. Open source defenders usually prefer 
to resort to ridicule and name calling ("trolls") in lieu of rational 
argument.