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Re: CAFC took JMRI case under advisement

From: amicus_curious
Subject: Re: CAFC took JMRI case under advisement
Date: Fri, 27 Jun 2008 14:21:46 -0400

"Alexander Terekhov" <> wrote in message">
Post-argument briefs:
(JMRI's post-argument "citation of supplemental authority")
(Amici's "response")
(Katzer's response)

I'm shocked by Amici's citation of Nimmer on Copyright talking about
"appropriate contractual provisions" and "appropriate contract
construction"... What!? I thought that licenses are not contracts in
"free as in free speech" world.

There is a recording of the oral arguments (or lack thereof) at

It seems to me that an appropriate punishment for presenting such nonsense from both sides should be that both attorneys are barred from ever litigating in court again. Clearly neither knew how to present a case.

The amicus brief file by Moglen and his minions framed the issue pretty squarely:

"The District Court's decision that the asserted violations of the Artistic
License at issue in this case sound in contract, not copyright, was erroneous. If the decision were applied broadly, it could disrupt the settled expectations of literally
millions of copyright holders who have depended upon the copyright system to
secure the right to enforce public licenses....

....Traditional copyright licenses grant exclusive rights in exchange for money or other remuneration. Public licensors leverage the exclusive rights that copyright confers for public good, for example to secure freedom to derivative authors and users, or to enhance innovation. The conditions and limitations in public licenses
are designed to increase the freedom of downstream authors and users without
imposing the typical copyright clearance burdens. One common condition of
public licenses is a requirement that prior to any distribution of the work (or a derivative version of the work), copyright notices and license provisions included
in the original version must be copied and included in the distribution."

This seems like a plan to go "all in" as in the popular Hold-em poker game. It is an opportunity for the circuit court to put this nonsense out of its misery once and for all.

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