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Re: CAFC took JMRI case under advisement

From: rjack
Subject: Re: CAFC took JMRI case under advisement
Date: Fri, 04 Jul 2008 11:34:47 -0400
User-agent: Thunderbird (Windows/20080421)

Hyman Rosen wrote:
rjack wrote:
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 owner."

Here's the decision: <>.
First of all, the case was about a patent, not a copyright. Second,
the decision also says

    'Concede that, if the owner had said, "If you go on and infringe
     my patent, I shall not attempt to enjoin you, but I shall
     subsequently sue you for infringement," the tort would not be

and that is similar to language contained in the GPL.

How 'bout this discussion:

"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)." Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)

Rjack :)

-- "Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C. ยงยง 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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