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Re: SFLC chooses wrong court
From: |
Alexander Terekhov |
Subject: |
Re: SFLC chooses wrong court |
Date: |
Tue, 25 Sep 2007 18:06:48 +0200 |
Rui Miguel Silva Seabra wrote:
>
> On Tue, Sep 25, 2007 at 04:24:42PM +0200, Alexander Terekhov wrote:
> > Next, the exact language of Monsoon Multimedia's "admission" isn't quite
> > that colorful.
>
> For you maybe...
>
> > "SAN MATEO, Calif. September 21, 2007 Monsoon Multimedia today
> > announced efforts to fully comply with the GNU General Public License
> > (GPL). Monsoon is in settlement negotiations with BusyBox to resolve
> > the matter and intends to fully comply with all open-source software
> > license requirements. Monsoon will make modified BusyBox source code
> > publicly available on the company web-site at www.myhava.com in the
> > coming weeks.
> >
> > "Since we intend to and always intended to comply with all open
> > source software license requirements, we are confident that the
> > matter will be quickly resolved, said Graham Radstone, Chairman and
> > Chief Operating Officer at Monsoon Multimedia."
> >
> > IOW, they're ready to comply with contractual covenant regarding
> > making BusyBox code available. Compliance with a contract is almost
> > always voluntary -- if you choose not to comply, then you don't have
> > to. You merely have to compensate the non-breaching party for his
> > expectancy interest.
>
> I see no "contract" except for your words, they speak of "license
> requirements" which imply copyright violation.
The GPL contains no conditions precedent, stupid. Certainly not under
New York law.
-------
"We think that the payment of royalties and the inclusion of a notice
crediting James's authorship are to be considered covenants, not
conditions. The construction of the licensing agreement is governed by
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150,
153 (2d Cir. 1968). Generally speaking, New York respects a presumption
that terms of a contract are covenants rather than conditions ... 'The
law favors covenants, rather than conditions precedent.'), aff'd , 193
N.Y. 661 (1908)." Graham id.
-------
Failure to meet a "condition precedent" stated in a contract gives
rise to an infringement violation because you never got permission in
the first place (it also means that there is nothing to terminate and
no rights can possibly be lost***). Conditions precedent are
disfavored in the law.
***) SFLC's complaint argues that Monsoon *lost* the rights to
BusyBox code the moment it shipped object code without offering the
source code also.
---------
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.
---------
regards,
alexander.
--
"The revolution might take significantly longer than anticipated."
-- The GNU Monk Harald Welte
- SFLC chooses wrong court, rjack, 2007/09/23
- Re: SFLC chooses wrong court, Rahul Dhesi, 2007/09/23
- Re: SFLC chooses wrong court, Rui Miguel Silva Seabra, 2007/09/23
- Message not available
- Re: SFLC chooses wrong court, John Hasler, 2007/09/23
- Re: SFLC chooses wrong court, Alexander Terekhov, 2007/09/24
- Re: SFLC chooses wrong court, Rui Miguel Silva Seabra, 2007/09/24
- Message not available
- Re: SFLC chooses wrong court, Alexander Terekhov, 2007/09/25
- Re: SFLC chooses wrong court, Rui Miguel Silva Seabra, 2007/09/25
- Message not available
- Re: SFLC chooses wrong court,
Alexander Terekhov <=
- Re: SFLC chooses wrong court, Rui Miguel Silva Seabra, 2007/09/25
- Message not available
- Re: SFLC chooses wrong court, rjack, 2007/09/26
- Re: SFLC chooses wrong court, Rui Miguel Silva Seabra, 2007/09/26
- Message not available
- Re: SFLC chooses wrong court, rjack, 2007/09/26
Message not available
Re: SFLC chooses wrong court, Bruce Lewis, 2007/09/27