[Novalug] The Saga Conintues - the legal system

[Paul D. Bain]

Jay Sulzberger wrote:
> 
> On Sat, 11 Nov 2006, Joel Fouse <joel at fouse.net> wrote:
> 
>>> The agreement is to give permission to some few people to write
>>> and run software, as long as the software is never used for
>>> commercial purposes.
>>
>> I'm sorry, could you please substantiate this statement?  I have not yet
>> seen the actual legal text of the agreement (is it published
>> somewhere?), and I saw nothing in any announcement or press release that
>> related to individuals writing and running their own code; nor do I
>> recall any mention of restrictions relating to "commercial purposes".
>>
>>>   The agreement assumes that Microsoft and
>>> Novell could not give permission in some cases.  If we grant that
>>> the agreement has any force, we have agreed that Microsoft and
>>> Novell have the legal power to not give permission to me to
>>> write, run, and publish my own software.
>>>
>>> The agreement is based on a false principle: that we need the
>>> permission of Microsoft and Novell to write, run, and distribute
>>> free software.  We do not.  If we accept the agreement as having
>>> any legal force whatever, we have surrendered the rights upon
>>> which the free softwrae movement is based.
>>
>> You're making it sound like we're all being asked to assent to this
>> agreement, and suggesting that such assent would carry weight even as
>> you declare that a binding, contractual document does not.
> 
> We are being asked for assent, or at least assent by silence, to
> a radical attack on our rights.  The rights being: our right to
> write software, our right of copyright on the software we write,
> our right to run our software, our right to distribute our
> software under licenses we choose, and to do all this without
> asking permission of Microsoft and Novell.
> 
> As stated, judges and juries often make judgements based on "the
> official position" on fundamental issues underlying the
> particular dispute at law.

	With all due respect, your understanding of the legal system and the 
manner in which juries are permitted to reach their verdicts may be a 
bit flawed. There are _many_ restrictions on both juries and judges, 
including the evidence that the jury is permitted to hear and that they 
are permitted to consider. This is the law of evidence, which is a large 
part of the law of procedure.

	Furthermore, judges are greatly restricted in the legal instructions 
that they may give to the jury just before the jury begins 
deliberations. Judges are required to instruct juries as to the law 
relevant to a trial, and they must abide by the rules for giving such 
instructions. If the trial judge does not abide by those rules, a court 
of appeals may reverse the entire verdict and judgment, ordering a new 
trial, or, instead, reverse only part of the judgment. Of course, the 
appellate court may also deem the trial judge's error to be harmless (as 
is frequent).

Sincerely,
Paul Bain

> If we allow Microsoft to impose as
> part of "the offical position" that we need permission from
> Microsoft to write, use, and distribute our own code, well, we
> are likely to face attacks in court, and we may indeed lose these
> rights in the United States of America.  Lose theme until we
> re-establish them by fighting a difficult campaign of recovery.
> We must say no now, and the best way to say no is to not use any
> Novell product.
>