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Re: license issue: calling a GPLv2 library

From: Alexander Terekhov
Subject: Re: license issue: calling a GPLv2 library
Date: Thu, 22 Jun 2006 20:38:25 +0200

David Kastrup wrote:
> to say "your honor, I plead not accepting the license, thus am not
> bound to its conditions, and would prefer to be tried in criminal
> court for copyright violation than here for breach of license"?

*Breach* of IP license is a contract claim, idiot. The "binding" 
things in a license contract are covenants. Conditions define the 
scope and distinguish lawfully made copies from unlawfully made 
copies (such as copies with removed notices for example... unless it 
falls under some exceptions to exclusive right like fair use, etc.). 
Regarding unlawfully made copies, the copyright owner will have the 
cause of action for copyright infringement in a civil action 
(criminal prosecution aside for a moment).

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.


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