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Re: SFLC chooses wrong court

From: Alexander Terekhov
Subject: Re: SFLC chooses wrong court
Date: Tue, 25 Sep 2007 18:06:48 +0200

Rui Miguel Silva Seabra wrote:
> On Tue, Sep 25, 2007 at 04:24:42PM +0200, Alexander Terekhov wrote:
> > Next, the exact language of Monsoon Multimedia's "admission" isn't quite
> > that colorful.
> For you maybe...
> >   "SAN MATEO, Calif. — September 21, 2007 — Monsoon Multimedia today
> >   announced efforts to fully comply with the GNU General Public License
> >   (GPL). Monsoon is in settlement negotiations with BusyBox to resolve
> >   the matter and intends to fully comply with all open-source software
> >   license requirements. Monsoon will make modified BusyBox source code
> >   publicly available on the company web-site at in the
> >   coming weeks.
> >
> >   "Since we intend to and always intended to comply with all open
> >   source software license requirements, we are confident that the
> >   matter will be quickly resolved,” said Graham Radstone, Chairman and
> >   Chief Operating Officer at Monsoon Multimedia."
> >
> > IOW, they're ready to comply with contractual covenant regarding
> > making BusyBox code available. Compliance with a contract is almost
> > always voluntary -- if you choose not to comply, then you don't have
> > to. You merely have to compensate the non-breaching party for his
> > expectancy interest.
> I see no "contract" except for your words, they speak of "license 
> requirements" which imply copyright violation.

The GPL contains no conditions precedent, stupid. Certainly not under 
New York law. 

"We think that the payment of royalties and the inclusion of a notice 
crediting James's authorship are to be considered covenants, not 
conditions. The construction of the licensing agreement is governed by 
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150, 
153 (2d Cir. 1968). Generally speaking, New York respects a presumption 
that terms of a contract are covenants rather than conditions ... 'The 
law favors covenants, rather than conditions precedent.'), aff'd , 193 
N.Y. 661 (1908)." Graham id. 

Failure to meet a "condition precedent" stated in a contract gives 
rise to an infringement violation because you never got permission in 
the first place (it also means that there is nothing to terminate and 
no rights can possibly be lost***). Conditions precedent are 
disfavored in the law. 

***) SFLC's complaint argues that Monsoon *lost* the rights to 
BusyBox code the moment it shipped object code without offering the 
source code also.

While a party that owns copyright rights is ordinarily entitled to pursue 
infringement claims against any third party who violates them, the courts 
have recognized that the rights and remedies available to copyright 
holders change significantly when the owner elects to give others a 
nonexclusive license to use such property. In that situation, the 
owner/user relationship is fundamentally different. Absent a license, the 
rights of the copyright holder are governed by statutory and common 
law rules applicable to such rights. With a license, however, the terms 
and covenants of the license establish the applicable rules. See 
Effects Associates, Inc. v. Cohen, 908 F.2d 555, 559 (9th Cir. 1990) 
(in granting a copyright license, the licensor gives up its right to sue 
the licensee for infringement). 

Recognizing that the existence of consensual licensing arrangements 
significantly changes the applicable rules and the expectations of the 
parties, federal courts have held that a party cannot normally pursue a 
copyright infringement action based upon the licensees breach of 
covenants in the license agreement. As a general rule, " if the 
[licensees] improper conduct constitutes a breach of a covenant 
undertaken by the licensee . . . and if such covenant constitutes an 
enforceable contractual obligation, then the licensor will have the 
cause of action for contract," not for copyright infringement. Graham 
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey, 
698 F.2d 991, 993 (9th Cir. 1983): 

[A] case does not arise under the federal copyright laws . . . merely 
because the subject matter of the action involves or affects a copyright. 


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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