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Re: More FSF hypocrisy

From: Rjack
Subject: Re: More FSF hypocrisy
Date: Thu, 26 Mar 2009 17:40:46 -0400
User-agent: Thunderbird (Windows/20090302)

Hyman Rosen wrote:
*not* copyright law.

Wrong. In the case of the combined work containing GPLed code, the combining author receives permission from the GPL.

As part of a bilateral contractual agreement where two authors agree
to exchange copyright permissions in order to provide third party

This is just standard contract law.

Violation of a license is grounds for copyright infringement:

Not unless scope-of-use is exceeded.

"Whether this is a copyright or a contract case turns on whether the
compatibility provisions help define the scope of the license.
Generally, a "copyright owner who grants a nonexclusive license to
use his copyrighted material waives his right to sue the licensee
for copyright infringement " and can sue only for breach of
contract. Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998) (citing
Peer Int'l Corp. v. Pansa Records, Inc., 909 F.2d 1332, 1338-39 (9th
Cir. 1990)). If, however, a license is limited in scope and the
licensee acts outside the scope, the licensor can bring an action
for copyright infringement. See S.O.S., Inc. v. Payday, Inc., 886
F.2d 1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
(1999)."; Sun Microsystems Inc Delaware Corporation v. Microsoft,
188 F.3d 1115 (9th Cir. 1999).

You can't turn breach of a bilateral contractual agreement to
provide third party benefits (consideration) into a scope-of-use

"In addition, under contract law, a contract is supported by
consideration even if the consideration flows solely to a third
party. See Mencher v. Weiss, 114 N.E.2d at 181(“[I]t is fundamental
that a benefit flowing to a third person or legal entity constitutes
a sufficient consideration for the promise of another.”);
In re Asia Global Crossing, Ltd., 326 B.R. 240 (Bankr. S.D.N.Y. 2005).

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