Re: SFLC's GPL court enforcement -- track record

[Alexander Terekhov]

John Hasler wrote:
> 
> Alexander Terekhov wrote:
> > "Plaintiffs’ copyrights are unique and valuable property whose market
> > value is impossible to assess"
> >
> >                              -- SOFTWARE FREEDOM LAW CENTER, INC.
> 
> Noah Slater writes:
> > What does this mean?
> 
> Google "statutory damages".  "Irreparable harm" is another possibly
> relevant phrase.

Well well well, uncle Hasler. This is also relevant:

http://jmri.sourceforge.net/k/docket/158.pdf

"Plaintiff’s Claim Sounds in Contract, Not Copyright.

Plaintiff contends that he has a claim for copyright infringement, and
has demonstrated Defendants’ copying of the protected expression, and is
therefore, entitled to a presumption of irreparable harm. Plaintiff’s
claim for copyright infringement states that Defendants, “without
permission or consent, has [sic] made copies, distributed copies to the
public, or created derivative works in violation of the exclusive
rights. Defendants’ actions constitute infringement of plaintiff’s
copyright and exclusive rights under the Copyright Act.” (See Amended
Complaint at ¶ 100.) However, Plaintiff’s copyrighted decoder definition
files are subject to an open source software license that permits
potential licensees, members of the public who have access to the files
on the internet, to make copies, distribute and create derivative works
from the software, provided the licensees give proper credit to the JMRI
Project original creators. (See id. at ¶¶ 2, 41; see also Supplemental
Declaration of Robert Jacobsen (“Suppl. Jacobsen Del.”), ¶ 2, Ex. A.)
The license provides that potential licensees “may make or give away
verbatim copies of the source form ... without restriction provided that
[the licensee] duplicate all of the original copyright notices and
associated disclaimers.” (See Suppl. Jacobsen Decl., Ex. A.) The license
further provides that the user or licensee may distribute the
copyrighted work “in a more-or-less customary fashion, plus [have] the
right to make reasonable modifications.” (Id.) Lastly, the license
rovides that the licensee “may distribute [the material] in aggregate
with other (possibly commercial) programs as part of a larger (possibly
commercial) software distribution provided that [the licensee] not
advertise [the material] as a product of [the licensee’s] own.” (Id.)

Based on the both the allegations in the amended complaint and the
explicit language of the JMRI Project’s artistic license, the Court
finds that Plaintiff has chosen to distribute his decoder definition
files by granting the public a nonexclusive license to use, distribute
and copy the files. The nonexclusive license is subject to various
conditions, including the licensee’s proper attribution of the source of
the subject files. However, implicit in a nonexclusive license is the
promise not to sue for copyright infringement. See In re CFLC, Inc., 89
F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio Telephone Co. v.
United States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive
license is, in essence, a mere waiver of the right to sue the licensee
for infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d
555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive
license may be oral or by conduct and a such a license creates a waiver
of the right to sue in copyright, but not the right to sue for breach of
contract). Therefore, under this reasoning, Plaintiff may have a claim
against Defendants for breach the nonexclusive license agreement, but
perhaps not a claim sounding in copyright.

However, merely finding that there was a license to use does not
automatically preclude a claim for copyright infringement. A licensee
infringes the owner’s copyright where its use exceeds the scope of the
license. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir.
1989), citing Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (2d
Cir. 1976). In S.O.S., the plaintiff held a copyright in a computer
program and had granted defendant a licence to “use” the software and
had explicitly reserved all other rights. The plaintiff claimed that by
modifying the software the defendant had exceeded the scope of the
license and therefore infringed the copyright. Id. Here, however, the
JMRI Project license provides that a user may copy the files verbatim or
may otherwise modify the material in any way, including as part of a
larger, possibly commercial software distribution. The license
explicitly gives the users of the material, any member of the public,
“the right to use and distribute the [material] in a more-orless
customary fashion, plus the right to make reasonable accommodations.”
(See Suppl. Jacobsen Decl., Ex. A.) The scope of the nonexclusive
license is, therefore, intentionally broad.

The condition that the user insert a prominent notice of attribution
does not limit the scope of the license. Rather, Defendants’ alleged
violation of the conditions of the license may have constituted a breach
of the nonexclusive license, but does not create liability for copyright
infringement where it would not otherwise exist. Therefore, based on the
current record before the Court, the Court finds that Plaintiff’s claim
properly sounds in contract and therefore Plaintiff has not met his
burden of demonstrating likelihood of success on the merit of his
copyright claim and is therefore not entitled to a presumption of
irreparable harm. See Sun Microsystems, 188 F.3d at 1119. Plaintiff has
not met his burden of demonstrating either a combination of probable
success on the merits of his copyright claim nor the existence of
serious questions going to the merits. See GoTo.com, 202 F.3d at
1204-05.

Accordingly, the Court DENIES"

--
"Plaintiffs’ copyrights are unique and valuable property whose market
value is impossible to assess"

                             -- SOFTWARE FREEDOM LAW CENTER, INC.