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Re: SFLC chooses wrong court

From: rjack
Subject: Re: SFLC chooses wrong court
Date: Wed, 26 Sep 2007 10:10:30 -0400
User-agent: Thunderbird (Windows/20070728)

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.


I see no "contract" except for your words, they speak of "license requirements" which imply copyright violation.

Spend more time reading Federal case law and less time making ad hominem

One of biggest myths concerning the GPL was founded by the Free Software
Foundation's insistence that the "GPL is a license not a contract" or
it’s a  “conditional license”. Perhaps they are confused concerning the
difference between a copyright license’  “permitted scope of use
restriction” and a contractual covenant but all copyright license are
drafted as contracts.

The Supreme Court in referring to patents, opined in 1927:
"No formal granting of a license is necessary in order to give it
effect. Any language used by the owner of the patent or any conduct on
his part exhibited to another, from which that other may properly infer
that the owner consents to his use of the patent in making or using it,
or selling it, upon which the other acts, constitutes a license, and a
defense to an action for a tort. Whether this constitutes a gratuitous
license, or one for a reasonable compensation, must, of course, depend
upon the circumstances; but the relation between the parties thereafter
in respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; DE FOREST RADIO TEL.
& TEL. CO. v. UNITED STATES, 273 U.S. 236 (1927)

This principle was held to apply to a  copyright license by the Ninth
Circuit in 1996 (quoting the Second Circuit):
"Generally, a 'copyright owner who grants a nonexclusive license to use
his copyrighted material waives his right to sue the licensee for
copyright infringement' and can sue only for breach of contract." Id. at
1121 (quoting Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998) (citing
Peer Int'l Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1338-39 (9th
Cir. 1990))."; Sun Microsystems, Inc. v. Microsoft Corp.,. 188 F.3d 1115
(9th Cir. 1996)

The Eleventh Circuit is in accord with this principle:
"Implicit in that permission was a promise not to sue for copyright
infringement–a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d 673,
677 (9th Cir.1996) ("[A]nonexclusive patent license is, in essence, "a
mere waiver of the right to sue' the licensee for infringement.")
(quoting De Forest Radio Telephone & Telegraph Co. v. United States, 273
U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625 (1927)). "; Jacob Maxwell
Inc., v. Veeck, 110 F.3d 749 (11th Cir. 1997).

The Federal Circuit reaffirmed this holding in 2001:
"A license is governed by the laws of contract. See McCoy v. Mitsuboshi
Cutlery, Inc., 67 F.3d 917, 920, 36 USPQ2d 1289, 1291 (Fed. Cir. 1995)
("Whether express or implied, a license is a contract governed by
ordinary principles of state contract law.").; JAZZ PHOTO, ET AL. v ITC
, 264 F.3d 1094 (Fed. Cir. 2001).

The highly  respected Judge  Richard A. Posner of the  Seventh Circuit
Court of Appeals ruled in 2003:
 “If a breach of contract (and a copyright license is just a type of
contract). . .”; In re Aimster, 334 F.3d 643 (7th Cir. 2003).

This licensing principle -- that all intellectual  property licenses are
a type of contract -- was explained to Richard Stallman by Professor
Micheal Davis in 1999. See:

For the past eighty years intellectual property licenses have been
drafted as contracts under prevailing federal case law. The SFLC or the
Free Software Foundation have never cited to a single federal precedent
holding an intellectual property license to be anything other than a

Urban legends often suffer a slow, lingering death.

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