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Re: SFLC files 2nd intimidation suit

From: Alexander Terekhov
Subject: Re: SFLC files 2nd intimidation suit
Date: Mon, 26 Nov 2007 12:18:05 +0100

Tim Smith wrote:
> On 2007-11-24, rjack <> wrote:
> > Tim Smith wrote:
> >> On 2007-11-21, rjack <> wrote:
> >>> The designated donee beneficiaries of the GPL are obviously "all third
> >>> parties". Clearly the plaintiffs are "parties" to the GPL contract and
> >>> cannot be a member of the class "all third parties." Therefore the
> >>> plaintiffs can suffer no injury by the source code not being made
> >>> available to "all third parties".
> >
> >
> >> Their injury is the use of the copyrighted work in a manner that they
> >> have not agreed to.
> >
> >
> > To constitute copyright infringement an action must be capable of
> > violating an author's 17 USC sec. 106 exclusive rights in the absence of
> > any license at all.
> >
> > Requiring distribution of another author's modifications in a derivative
> > work is not one of the exclusive rights enumerated under 17 USC sec. 106
> > and cannot lead to a charge of "copyright infringement".
> The preparation of that derivative work in the first place is one of the
> exclusive rights under 17 USC 106.

Not really much exclusive regarding software, Tim. 17 USC 117.

What it says is that even under contractual restrictions of statutory 
rights, 17 USC 117 bars cause of action for copyright infringement when 
"the party exercises sufficient incidents of ownership over a copy of 
the program to be sensibly considered the owner of the copy for purposes 
of § 117(a)." Same as with 17 USC 109. Now, that, of course, doesn't 
preclude cause of action for breach of contract... but we all know that
according to SFLC's own Chairman and Director-Counsel, the GPL is "a 
license NOT a contract." LOL.

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.

See also:
(Artistic License is a contract)

"the Court finds that Plaintiff's claim properly sounds in contract"

Also worth noting is IBM's motion in SCO v. IBM:

"SCO's GPL violations entitle IBM to at least nominal damages on
the Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design
LLC 20 P.3d 388, 392 (Utah 2001) (explaining that it is "well
settled" that nominal damages are recoverable upon breach of
contract); Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)
("Nominal damages are always available in breach of contract 
action".). "


"Plaintiffs’ copyrights are unique and valuable property whose market 
value is impossible to assess"

                             -- SOFTWARE FREEDOM LAW CENTER, INC.

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