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Re: Drunkards at CAFC ruled

From: Rjack
Subject: Re: Drunkards at CAFC ruled
Date: Thu, 14 Aug 2008 21:20:44 -0400
User-agent: Thunderbird (Windows/20080708)

Hyman Rosen wrote:
Rjack wrote:
It is absolutely amazing that two sets of three independent
appellate judges in the same Federal Circuit managed to come to
diametrically opposed rulings on the subject of scope of use

It's not amazing at all. The StorageTek case involved a manufacturer
trying to restrict a third party repair service from getting their
software to work on some hardware that they sold. The JMRI case
involves someone deliberately distributing code in violation of a
copyright license.

In fact, both of these cases honor the FSF notion of free software -
the StorageTek case honors the freedom to run and modify software,
and the JMRI case shows the effectiveness of the GPL and other such

The controlling law of the Second Circuit where the SFLC has filed the
Monsoon infringement cases is Graham v. James, 144 F.3d 229, 236 (2d
Cir. 1998).

The Federal Circuit cited to the Graham v. James decision and then
refused to accept the Second Circuit as authority for it's decision that
the "covenants" in the JMRI case were actually "conditions":

"Thus, if the terms of the Artistic License allegedly violated are both
covenants and conditions, they may serve to limit the scope of the
license and are governed by copyright law. If they are merely covenants,
by contrast, they are governed by contract law. See Graham, 144 F.3d at
236-37 (whether breach of license is actionable as copyright
infringement or breach of contract turns on whether provision breached
is condition of the license, or mere covenant); Sun Microsystems, 188
F.3d at 1121 (following Graham; independent covenant does not limit
scope of copyright license)."

Here's a snippet from the Seond Circuit's Graham v. James decision:

"Moreover, Graham's failure to credit James with the copyright on the C
version did not itself amount to copyright infringement. According to
Nimmer, "The generally prevailing view in this country under copyright
law has been that an author who sells or licenses her work does not have
an inherent right to be credited as author of the work. In line with
that general rule, it has been held not to infringe an author's
copyright for one who is licensed to reproduce the work to omit the
author's name." 3 Nimmer on Copyright, supra, ยง 8D.03[A], at 8D-32
(citations omitted). . . The construction of the licensing agreement is
governed by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391
F.2d 150, 153 (2d Cir.1968). Generally speaking, New York respects a
presumption that terms of a contract are covenants rather than
conditions. See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141,
147 (2d Cir.1985) ("In the absence of more compelling evidence that the
parties intended to create a condition, the negotiation provision must
be construed as a promise or covenant."); Warth v. Greif, 121 A.D. 434,
106 N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
than conditions precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908)."

Please oh please Lord, let the SFLC cite to the Federal Circuit
as legal authority in the Monsoon cases. Please!

He!He! Ha!Ha! Ho!Ho!


-- "[I]f an extra element is required instead of or in addition to the
acts of reproduction, performance, distribution or display in order to
constitute a state-created cause of action, there is no preemption,
provided that the extra element changes the nature of the action so that
it is qualitatively different from a copyright infringement claim."
Stromback v. New Line Cinema, 384 F.3d 283 (United States Court Of
Appeals for the Sixth Circuit 2004) --

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