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Re: GPLv3 comedy unfolding -- Landley: "Not Going There (tm)" (re 'licen

From: rjack
Subject: Re: GPLv3 comedy unfolding -- Landley: "Not Going There (tm)" (re 'license' vs 'contract')
Date: Sat, 16 Jun 2007 12:59:42 -0500
User-agent: Thunderbird (Windows/20070604)

Alexander Terekhov wrote:
Rob Landley wrote:

Er, copyright law is federal, contract law is generally state
level?  So not only does contract law vary a lot more by
jurisdiction, but it's enforced by different courts than suits over
copyright?  (You'll notice the GPL doesn't say which state law
holds sway.  If it was a contract this would be kind of important.)

All copyright license are contracts under US law:

"If a breach of contract (and a copyright license is just a type of
contract)..."; In Re Aimster Copyright Litigation, 334 F.3d 643,(7th
Cir. 2003).

A copyright license contains a "grant of rights" that determines the
"scope of permitted use" of the copyrighted material. *Only* if you
exceed the scope of permitted use are you liable for *copyright
infringement*. If you violate terms in the copyright license that do not
determine the scope of use then you are are liable for *breach of contract*.

"[W]e agree with Microsoft that the issue turns upon whether the terms
Microsoft allegedly breached were limitations on the scope of the
license, which would mean that Microsoft had infringed the copyright by
acting outside the scope of the license; or whether the terms were
merely separate contractual covenants, which wouldmake this a contract
dispute..."; Sun Microsystems v. Microsoft (9th Cir. 1999).

Separating the scope limiting terms from other terms in the contract can
be an enormous pain that is fraught legal pitfalls in a poorly drafted
copyright license.

A scope limiting term is generally defined as a term that would violate
copyrights in the absence of any license at all.


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