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SFLC chooses wrong court

From: rjack
Subject: SFLC chooses wrong court
Date: Fri, 21 Sep 2007 15:59:31 -0400
User-agent: Thunderbird (Windows/20070728)

The SFLC is using threats of copyright infringement prosecution under
the GPL as a tactical matter to force Monsoon Multimedia to comply with
a contractual covenant.The SFLC will never allow a federal court to
examine the GPL on its merits.

If the suit goes forward (which I seriously doubt) the District Court
will dismiss due to failure to state a federal claim. Contract claims are heard under the common law of state jurisdictions.

Failing to distribute source code is a contract breach and not a violation of a work's permitted use under copyright law. There is obviously no provision under U.S. copyright law to *force* a party who has permission to copy and make derivative works to distribute those copyrighted works. Those actions are solely a contractual matter.

1.) There is no "automatic" contract rescission under New York State common law. The *same* District Court in which the SFLC has chosen to file its claim has ruled:

 ". . . recession of the contract only occurs upon affirmative acts by
the licensor, and a breach by one party does not automatically result in recession of a contract. Id. at 238 ("New York law does not presume the rescission or abandonment of a contract and the party asserting
rescission or abandonment has the burden of proving it")."; Atlantis
Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y.
April 30, 2007).

2.) A Federal Court of Appeals has ruled a that a copyright contract rescission claim in federal court is preempted by 17 USC sec. 301(a):

"Because Santa Rosa seeks rescission of his contract, if we were to
grant him the relief that he sought, we would be required to determine
his ownership rights by reference to the Copyright Act. In such a case,
there is little question that we would be merely determining whether
Santa Rosa was entitled to compensation because of "mere copying" or
"performance, distribution or display" of his recordings. Data Gen.
Corp., 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa
Rosa's rescission claim."; Santa-Rosa v. Combo Records, 05–2237 (1st
Cir. Dec. 15, 2006).

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