Subject: Re: Moglen's Assertion
From: John Cowan <jcowan@reutershealth.com>
Date: Sat, 4 Sep 2004 03:07:53 -0400

 Sat, 4 Sep 2004 03:07:53 -0400
dlw scripsit:

> Condition Defined:
>     A condition is an event, not certain to occur, which
> must occur, unless its non-occurrence is excused, before
> performance under a contract becomes due.

That would be fine if the GPL alleged that it were a contract,
but it doesn't and it isn't.  The condition is just a condition
without which the bare license is not granted.

> "A licensor may not simultaneously assert that the exact
> same contract language is a covenant, claiming it has been
> breached, and that it is not a covenant, but the definition
> of the license. An action for breach of contract is
> inconsistent with a copyright infringement action. 3 Nimmer
> on Copyright )B10.15[A] at 10-122-25 (1999 ed.)"
> --- Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d
> 1115, 1118 (9th Cir. 1999).

The GPL not being a contract, no one can claim breach.  What you
claim when the GPL is violated is copyright infringement.

-- 
Evolutionary psychology is the theory           John Cowan
that men are nothing but horn-dogs,             http://www.ccil.org/~cowan
and that women only want them for their money.  http://www.reutershealth.com
        --Susan McCarthy (adapted)              jcowan@reutershealth.com