Re: SFLC files 2nd intimidation suit

[rjack]

Alexander Terekhov wrote:

> See also:
>
> http://jmri.sourceforge.net/k/docket/158.pdf
> (Artistic License is a contract)
>
> "the Court finds that Plaintiff's claim properly sounds in contract"

The Court ruled in the JMRI case (supra):

"Although the state claims are subject to dismissal on the merits for 
lack of standing and for failure to state a claim upon which relief can 
be granted, the Court also finds that the two
counts are preempted by federal copyright law, to the extent Plaintiff 
makes out a claim for copyright infringement. Section 301 of the Federal 
Copyright Act provides in pertinent part:

'all legal or equitable rights that are equivalent to any of the 
exclusive rights within the general scope of copyright ... are governed 
exclusively by this title. Thereafter, no person is entitled to any such 
right or equivalent right in any such work under the common law or 
statutes of any State.'

17 U.S.C. § 301. The federal copyright preemption of overlapping state 
law claims is 'explicit and broad'. . .

 Accordingly, to the extent Plaintiff makes out a claim for copyright 
infringement, Counts Five and Ten are preempted by federal copyright 
law, and are thereby dismissed on this alternate basis without leave to 
amend."; JACOBSEN v. KATZER, No. C 06-01905 JSW, (ND Cal. 2007).


The SFLC knows that preemption prevents enforcement of the GPL. So they
have mapped a strategy in which they claim "automatic termination" and 
rescission of the GPL contract -- hoping the court won't examine the GPL
on it's legal merits. Unfortunately for the SFLC, in the Second Federal 
Circuit the law is:

“. . . rescission of the contract only occurs upon affirmative acts by 
the licensor, and a breach by one party does not automatically result in 
rescission of a contract. Id. at 238 (”New York law does not presume the 
rescission or abandonment of a contract and the party asserting 
rescission or abandonment has the burden of proving it”).”; Atlantis 
Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. 
April 30, 2007).

It doesn't get much more desperate (or morally bankrupt) than attempting 
to enforce an illegal contract (like the GPL) by fiat.

:)