[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: SFLC's GPL court enforcement -- track record

From: Alexander Terekhov
Subject: Re: SFLC's GPL court enforcement -- track record
Date: Sat, 08 Dec 2007 23:44:45 +0100

John Hasler wrote:
> rjack wrote:
> > PJ, although pretending that she is a "journalist" is simply a party
> > propagandist for the Free Software Foundation.
> Can't be.  Everyone knows she is a committee of IBM lawyers: SCO says so.

Well well well uncle Hasler, but in the context of PJ's comment 
#c654058 (still can be seen on Groklaw's page dedicated to PJ's story 
"BusyBox Developers, SFLC Sue Verizon for GPL Infringement"):

BusyBox Developers, SFLC Sue Verizon for GPL Infringement 
Authored by: PJ on Friday, December 07 2007 @ 05:37 PM EST 
The GPL is not a contract. It's a license, a
copyright license.
[ Reply to This | Parent | # ]

*both* SCO and IBM lawyers totally disagree with PJ:


Summary judgment is appropriate on IBM's Sixth Counterclaim, unless IBM
demonstrates a genuine issue of material fact as to the existence of a
breach of the GPL. See Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d
1373, 1378 (10th Cir. 1988). In its Seventh Counterclaim, IBM alleges
that it relied on SCO's promise not to breach the GPL. Accordingly, in
order to survive summary judgment on this counterclaim, IBM must
demonstrate an issue of fact as to the existence of a breach of the GPL.
See Tolboe Constr. Co. v. Staker Paving & Const. Co., 682 P.2d 843,
845-46 (Utah 1984) (addressing elements of a promissory estoppel claim
under Utah state law). Restatement of Contracts § 90 (allowing remedy
for "breach" of promise "as justice requires").1

The copyright cases expressly discussing the issue have rejected the
notion of "retroactive" breach, termination and infringement. In MCA
Television, Ltd. v. Public Interest Corp., 171 F.3d 1265 (11th Cir.
1999), for example, the court explained:

The notion that MCA had the power retroactively to rescind the contract
makes a mockery of that contractual agreement and would put any
contracting party in PIC's position in terror of upsetting the licensor
in any way for fear of being declared in breach, having the contracted-
for licenses "retroactively revoked," and being sued both for breach of
contract and in copyright for statutory damages that can far outweigh
contractually negotiated licensing fees.

Id. at 1274 n.8; see also Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749,
753 (11th Cir. 1997) (holding that one party's breach does not
automatically rescind a contract simply because that breach might give
the other party the right to rescind); 3 Melvin B. Nimmer, Nimmer on
Copyright § 10.15[A] at 10-120 (2004) ("[T]he license is terminated and
the copyright proprietor may hold his former grantee liable as an
infringer for subsequent use of the work. Failing such rescission . . .
the grant continues in place . . . until such time as the copyright
owner exercises his entitlement to rescind.").

It is a "well settled principle that where a contract is susceptible of
two interpretations, preference will be given to the interpretation which
does not violate the law." Bd. of Dirs. And Officers, Forbes Fed. Credit
Union v. Nat'l Credit Union Admin., 477 F.2d 777, 784 (10th Cir. 1973);
accord NLRB v. Local 32B-32J Serv. Employees Int'l Union, 353 F.3d 197,
202 (2d Cir. 2003); Guthart v. White, 263 F.3d 1099, 1104 (9th Cir. 2001).
Accordingly, the Court should not construe the GPL as IBM suggests.


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.

reply via email to

[Prev in Thread] Current Thread [Next in Thread]