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Re: Why do it?

From: Rjack
Subject: Re: Why do it?
Date: Fri, 15 Aug 2008 09:57:24 -0400
User-agent: Thunderbird (Windows/20080708)

Rjack wrote:

So why create a new copyright and then have it immediately preempted?

If the condition that users of the JMRI Standard Version
source code is considered to be a "condition subsequent"
to the granted permissions in the original source code,
a license has already been created to copy, modify and
distribute the source code prior to the condition subsequent.

(1) If the condition subsequent requires that a modifying
author waive his exclusive rights to the copyrights in his
derivative modifications, this demand is an obvious violation of
17 USC 103(b) and establishes a clear misuse of copyright
by expanding the scope of a preexisting author's copyrights
to control the exclusive copyrights of another.

(2) The condition subsequent will establish a new copyright
"equivalent" to the rights granted in 17 USC 106 by
controlling the distribution of derivative copyright works.
17 USC sec. 301 preempts any attempt to create new copyrights
that would give rise to a cause of action for copyright

The patent judges of the Federal Circuit seemingly are not
familiar with the provisions of 17 USC 301 copyright preemption.


-- "[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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