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Re: "GPL requirement could have a chilling effect on derivative distros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivative distros"
Date: Wed, 28 Jun 2006 22:34:00 +0200

David Kastrup wrote:
> Alexander Terekhov <> writes:
> > Karen Hill wrote:
> >>
> >> "I think, of the 500 distributions tracked by DistroWatch, probably 450
> >> of them are in trouble right now per this position.",
> >
> > Criminal penalties (costs plus attorney's fees in a civil action aside for
> > a moment), per FSF's own theory of enforcement through cause of action for
> > copyright infringement (not breach of contract claim),
> Sigh.  We are talking about a _license_ here.  

I'll take it that you've finally groked that in spite of bullshit 
rhetoric spouted by Moglen and his client, IP licenses are contracts.

"Nature of Suit: 190"

"190    Other Contract          Contract
 820    Copyrights              Property Rights
 830    Patent                  Property Rights
 840    Trademark               Property Rights"

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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