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From: | rjack |
Subject: | Re: SFLC's GPL court enforcement -- track record |
Date: | Mon, 10 Dec 2007 13:20:09 -0500 |
User-agent: | Thunderbird 2.0.0.9 (Windows/20071031) |
Alexander Terekhov wrote:
Courtesy of Groklaw... Alexander Terekhov wrote:Arnoud Engelfriet wrote:On 2007-12-08, Bruce Lewis <brlspam@yahoo.com> wrote:The GPL's track record has been and continues to be 100% enforceable.I've never seen a US case involving the GPL come to a verdict.
There was a verdict (court order) regarding attempt to impose injunction on the basis of GPL "automatic termination".
The SFLC's claim of "automatic termination" has a hollow ring to it under U.S. Second Federal Circuit precedent (includes New York State). I know the SFLC thinks it can ignore the Court of Appeals but. . ."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". Graham v. James, 144 F.3d 229 (2d Cir. 1998)
affirmed 2007 by the Eastern District: “. . . rescission of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (”New York law does not presume therescission 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).
The SFLC claims that these rulings are inapplicable because the GPL is a "license" not a "contract". Federal authority affirming this "non-contract" claim is as scare as evidence of WMD in Irag. Do you suppose Eben Moglen is related to George Bush?
regards, rjack--- "Although the United States Copyright Act, 17 U.S.C. §§ 101-1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them." Automation by Design, Inc. v. Raybestos Products Co., 463 F3d 749, (7th Cir. 2006)---
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