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Re: CAFC took JMRI case under advisement

From: rjack
Subject: Re: CAFC took JMRI case under advisement
Date: Fri, 27 Jun 2008 18:29:07 -0400
User-agent: Thunderbird (Windows/20080421)

amicus_curious wrote:

"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....

Eben Moglen is asking the Court of Appeals for the Federal Circuit to overturn
the clear and unequivocal language of the Supreme Court in De Forest Radio Tel.
& Tel. Co. v. United States, 273 U.S. 236, United States Supreme Court (1927):

"Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the circumstances; but
the relation between the parties thereafter in respect of any suit brought must
be held to be contractual, and not an unlawful invasion of the rights of the

The same Court of Appeals for the Federal Circuit held in Storage Technology Corporation v.Custom Hardware Engineering & Consulting, Inc.; 421 F.3d 1307 (CAFC) (2005):

"In light of their facts, those cases thus stand for the entirely unremarkable
principle that “uses” that violate a license agreement constitute copyright
infringement only when those uses would infringe in the absence of any license
agreement at all."

In the absence of any license at all, there is obviously no "right of
attribution" mentioned in 17 USC 106.

....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.

Clearly Moglen does not want to suffer with the "typical copyright clearance burdens" of the Copyright Act and instead wants to substitute Richard Stallman's idealogical version of copyright "freedoms". This leads one to ask if Moglen has has ever wondered why Congress passed 17 USC sec. 301:

"Preemption with respect to other laws.
(a) On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of copyright
as specified by section 106 in works of authorship that are fixed in a tangible
medium of expression and come within the subject matter of copyright as
specified by sections 102 and 103, whether created before or after that date and
whether published or unpublished, 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."

Obviously Congress thinks that its members, and not Richard Stallman, are
empowered to write the copyright laws that apply to the general public.

Rjack :}

-- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals for the Seventh Circuit 2006) --

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