Bruce Perens-inconsistent statements regarding Copyright, GPL, Open Source Security.

From: vca
Date: Fri Oct 19 2018 - 07:40:35 EST

In a prior public statement, Bruce Perens put forth a legal theory where users of a certain piece of Software would be liable for contributory copyright infringement*[1]. This statement, specifically the pronouncement of such damages reachable, is predicated on a pure copyright License theory regarding the grant under-which the Linux Kernel is distributed and modified.

* ( )

As we all know, under a contract theory, damages are quite limited regarding opensource licenses** (See the initial district court determination of Jacobsen v. Katzer) and the legal theory published by Bruce Perens, if analyzed under a contract theory regarding the GPL would become a less-than-likely scenario.

** (For this very reason, the FSF specifically drafted version 2 of the GPL to avoid language that would tend to induce a contract reading rather than a bare license construction. The FSF has maintained for decades that the GPL is a bare license and is not a contract)

It is just that utterance, added by Bruce Perens, regarding contributory copyright infringement damages reachable vis a vis the GPL version 2, that induced upwards of 70 of Open Source Security's clients to cease their business dealings with Open Source Security.

Bruce Perens has recently made known, publicly, that he currently believes in a Contract theory regarding the GPL version 2, specifically regarding the Linux Kernel. He has stated that he, infact, in the past has supplied expert testimony praying to the court for it to find that the GPL is, in fact, a contract (and not a bare (copyright) license). He has stated that the court has indeed relied on his testimony in various pleadings. ***[3]

Here, ( ) Bruce Perens argues that case law has overridden the esteemed Raymond Nimmer's opinion that the GPL is not a contract and is, at best, a failed contract, and likely a bare license akin to a property license. Bruce Perens further clarifies that it was his very own testimony that has convinced the court that the GPL is infact not a bare license and is instead a contract.

If these pleadings were to have occurred prior to the theory published regarding Open Source Security and its Contributor Access Agreement, that would put the lie to any suggestion that Bruce Perens in fact believed in the theory that he published at the time of publication and would instead suggest that rather than proffering his opinion regarding a matter - he was instead intentionally publishing a theory he believed to be a lie in-order to harm Open Source Security - A goal that has indeed been effected (specifically by the "Contributory Copyright Infringement" addendum).

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