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Re: Settlements

From: RJack
Subject: Re: Settlements
Date: Tue, 02 Mar 2010 08:35:25 -0500
User-agent: Thunderbird (Windows/20090812)

David Kastrup wrote:

Well since the unlicensed use conflicts with the exclusive rights to copy and modification without a license, there we are.

You can deem terms in a license whatever you want -- the pen is in your
hand. You can call a contractual covenant a "condition" until you turn
blue in the face but it won't magically make it a "condition" or scope
of use restriction. You can call a dog a cat forever but the dog won't
suddenly stop barking and start meowing while climbing trees.

A U.S. appeals court can issue a ruling directly contradicting the U.S.
Supreme Court but it will only signify an appeals court in error:

"[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be."; HUTTO v. DAVIS, 454 U.S. 370 (1982).

U.S. appeals court decisions are routinely overturned by the Supreme
Court. Only a constitutional amendment or appropriate legislative change
may overturn a holding of the Supreme Court. This is the law of the land
whether we like it or not:

"An unlicensed use of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
417 (1984).

The only two legal mechanisms in a copyright license that can cause a
"use" to conflict with an exclusive right are a "scope of use"
restriction or an unsatisfied condition precedent. Neither occurred
in the Jacobsen case with respect to the broadly worded Artistic License

Keep calling your dog a cat DAK and see if it stops barking and begins
to meow and purr. It won't -- but keep trying anyway.

You can't _both_ claim that the license permits copying and
modification while at the same time claiming that the conditions for
which it does so are not conditions.

Sure I can. I understand the difference between a covanent and a
condition. Judge White (correctly) said the same thing:

"Therefore, based on the current record before the Court, the Court
finds that Plaintiff’s claim properly sounds in contract and therefore
Plaintiff has not met his burden of demonstrating likelihood of success
on the merit of his copyright claim and is therefore not entitled to a
presumption of irreparable harm."

Supreme Court vs. moron. Court wins.

You bet it does.  And the moron does not even understand the words
the court uses.

I'm glad you agree. I can't help it that GNUtians are ignorant. They'll
just have to see the light on their own. Hopefully not while they
continue futilely attempting to convince their dog it's a cat.

RJack :)

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