Re: CAFC 2008-1001 -- "license to the world must be a bare license" case

[Alexander Terekhov]

[... http://lawandlifesiliconvalley.blogspot.com ...]

> The Netbula decision demonstrates the difficulty of proving that a
> license obligation is a "condition". Briefly, STC licensed Netbula's SDK
> for development and runtime version for distribution. Netbula alleges
> that STC used the SDK for more users than was permitted and on operating
> systems that were not permitted. The license grant is as follows: " a
> non-exclusive, perpetual, irrevocable license for Storagetek's
> employees, consultants and subsidiaries for up to ONE user(s) for each
> of the licenses purchased, to use the PowerRPC SDK Product under Windows
> NT and 95/98 platforms; each user can only use the software on one
> computer." The court found that the limitation on users was not a
> condition, but only a covenant. Consequently, the remedies for breach of
> the license would be damages and the breach was not copyright
> infringement. On the other hand, the court found that the restriction on
> the use of the SDK for certain operating sytems was a condition and its
> breach would be copyright infringement. However, Netbula did not prove
> that STC had used the SDK on the non permitted operating system.
> 
> Netbula also alleges that STC did not pay the royalties for all of the
> copies which it distributed. The license provided for payment of a fixed
> amount for 1000 copies. The court found that this obligation is
> covenant, not a condition.

http://www.terekhov.de/Netbula.pdf

------
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT AS TO
COPYRIGHT CLAIM

INTRODUCTION

Before the Court is Defendants Storage Technology Corporation 
(“StorageTek”), Sun Microsystems (“Sun”), International Business 
Machines Corporation (“IBM”), EMC Corporation (“EMC”) and Darden 
Restaurants’ (“Darden”) (collectively, “Defendants”) Motion for 
Summary Judgment as to License Defense. (Docket Nos. 63, 95.) 
Plaintiff Netbula LLC (“Plaintiff” or “Netbula”) opposes the 
Motion. For the following reasons, the Court GRANTS the Motion.
------

regards,
alexander.

--
"12/21/2007 ORDER TO EXTEND TIME FOR DEFENDANT...
 01/22/2008 ORDER TO EXTEND TIME FOR DEFENDANT...
 02/19/2008 ORDER TO EXTEND TIME FOR DEFENDAT(sic)...
 02/26/2008 ENDORSED LETTER addressed to Judge Laura Taylor Swain from
Daniel B. Ravicher...
 02/27/2008 ORDER that Defendants Verizon Communications, Inc. has
until March 14, 2008..."

 -- 1:07-cv-11070-LTS aka Never Beginning "GPL Enforcement" case