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Date:      Mon, 20 Apr 2020 01:49:36 -0400
From:      Aryeh Friedman <aryeh.friedman@gmail.com>
To:        "Kevin P. Neal" <kpn@neutralgood.org>
Cc:        FreeBSD Mailing List <freebsd-questions@freebsd.org>
Subject:   Re: freebsd should be rewritten based on microkernel architecture
Message-ID:  <CAGBxaX=tvmr2Px+anKNqUrscgWTLrdhJOp0gnOS8Z=NPP04K+g@mail.gmail.com>
In-Reply-To: <20200420040640.GA23751@neutralgood.org>
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Top posting because one comment covers the entire range of issue you raised
in a one size fits all manner.   According to a interview with FSF's lead
council (https://lwn.net/Articles/61292/) he makes the following claims:

1. Because GPL is it self GPL'ed (yes recursive licensing) it gives FSF
standing in any and all cases involving GPL regardless of copyright
holder.   The details have to deal with the fact that GPL is not just a
copyrighted document but an (recursively) enforceable license

2. It is a license *NOT* a contract (specifically because the user gives no
consideration and signs nothing)

3. Due to it being a copyright infringement (and perhaps patent issues but
since GPL does not forbid the use of trademarks no other IP is involved)
the jurisdiction is federal and federal only

The one district court discussed below doesn't agree but no other court has
weighed in one way or the other.


On Mon, Apr 20, 2020 at 12:06 AM Kevin P. Neal <kpn@neutralgood.org> wrote:

> On Sun, Apr 19, 2020 at 08:33:49PM -0400, Aryeh Friedman wrote:
> >    On Sun, Apr 19, 2020 at 7:44 PM Kevin P. Neal <[1]kpn@neutralgood.or=
g
> >
> >    wrote:
> >
> >      On Sat, Apr 18, 2020 at 09:31:30AM -0400, Aryeh Friedman wrote:
> >      > Thus I suspect if push came to shove in a legal fight about the
> >      legality of
> >      > GPL forcing third parties that just happen to use a GPL'ed proje=
ct
> >      to give
> >      > up all claims over how their work is used would likely
> >      unconstitutional.
> >      US courts generally prefer to make narrower decisions, and if a ca=
se
> >      can
> >      be settled without answering constitutional questions then that's
> >      probably
> >      what the court would do. I seriously doubt a court would say
> >      anything at
> >      all about the constitutionality of the GPL.
> >
> >    Of course they would likely use normal copyright law but the
> >    constitution is why IP law is federal but contract law is state.
>
> Uh, banana?
>
> I don't dispute that copyrights and patents are generally federal because
> of the part of the US Constitution that you quoted. Of course, if Congres=
s
> has not yet stated that copyright covers a work then copyright law for
> that work falls to the states. Congress is free to extend the scope of
> federal copyright, which it did multiple times in the 20th century.
>
> Other forms of "IP" are _not_ covered by that clause but fall under other
> clauses like the interstate commerce clause. Trademark, for example. Plus=
,
> forms of "IP" that haven't been addressed by Congress but have been
> addressed
> by states are covered by state law. Likeness rights, for example. Thus a
> blanket statement like "IP law is federal" is incorrect.
>
> My statement about courts preferring more narrow rulings stands.
>
> >      > FSF knows this and that is why they highly recommends you to
> >      assign all
> >      > intellectual property rights to FSF and/or the original author.
> >      > [2]https://www.gnu.org/licenses/gpl-faq.en.html#AssignCopyright
> >      I'm not going to waste time on that page. I'll just throw this in:
> >      One can only fight in court if one has "standing". The FSF has no
> >      standing
> >      to fight in court over violations of the license on code that, for
> >      example,
> >      I wrote. To establish standing the FSF needs something like holdin=
g
> >      the
> >      rights themselves.
> >
> >    There standing is obvious if the agreement is found to be null and
> void
> >    in one case then it is likely weaken any claims any other user of th=
e
> >    license makes (including FSF) thus if it was a class action suit the=
n
> >    it is more then certain they would be included in the injured class.=
 =C3=82
> >    Also since the license it self is copyrighted by FSF any violations =
of
> >    it would be copyright infringement on the license it self (since the
> >    license is required to be included with any code you right). =C3=82 =
 So
> >    showing standing is trivial.
>
> A showing of standing on the text of the license is trivial because the
> FSF holds the copyright on the text of the license. That doesn't give
> standing for any copyrighted parts that are not owned by the FSF. Standin=
g
> on the license's text does not grant standing on anything that is shipped
> with the license. Well, except perhaps in that one federal district. Mayb=
e.
>
> >    If you had read the page that you purposely skipped you would see th=
ey
> >    make roughly the same argument and even though a federal judge
>
> I went back and looked at those pages. The FSF says it makes it "easier"
> to enforce the GPL if rights are assigned to the FSF. This statement
> sidesteps explaining what "easier" is. Standing is part of the issue that
> the FSF is trying to address.
>
> And some of the FSF's pages are written by an actual skilled lawyer and
> thus are more clear than what a non-lawyer can write. We're not lawyers
> here.
>
> >    interpreting state law declared in a non-UCC state that GPL was a
> >    contract they also said that FSF had defacto standing in all cases
> >    involving GPL.=C3=82 =C3=82
> >    [3]
> https://perens.com/2017/05/28/understanding-the-gpl-is-a-contract-co
> >    urt-case/
>
> That case is only perhaps binding in that district. In the rest of the
> country the case at most rises to the level of persuasive precedent. If
> that, since the case was settled before a final ruling was made. So don't
> assume that *nationwide* the FSF has "defacto standing" on copyrighted
> works
> when they have no rights to the work outside of the text of the bundled
> license.
>
> --
> Kevin P. Neal                                http://www.pobox.com/~kpn/
>
> "What is mathematics? The age-old answer is, of course, that mathematics
>  is what mathematicians do." - Donald Knuth
>


--=20
Aryeh M. Friedman, Lead Developer, http://www.PetiteCloud.org



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