Re: Geek Feminism Wiki Re RMS

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> Alexander Terekhov wrote:
> > Hyman Rosen wrote:
> >
> > [... §4 of the GPL ... ]
> >
> > §4 of the GPL is not the law, silly. Provocative throwing §4 of the GPL
> > on the wall... but did it stick, Hyman? No.
> 
> Of course it's not the law, it's a condition under which the
> author, using his exclusive right to authorize the making and
> distribution of copies of his work, withdraws authorization.
> 
> What makes you think it didn't stick? The case was administratively
> closed when SCO filed for bankruptcy, and will be reopened once it
> emerges.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c

"In addition, prior to the filing of the infringement suit, RT Graphics
never took affirmative steps to terminate the license which it had
granted. This court agrees with other courts which have previously held
that such a measure is necessary on the part of the copyright holder. In
Graham v. James, the Court of Appeals for the Second Circuit stated that
"[e]ven assuming [the publisher] materially breached the licensing
agreement and that [the programmer] was entitled to rescission, such
rescission did not occur automatically without some affirmative steps on
[the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of
Appeals for the Eleventh Circuit expressed a similar view: 

[E]ven assuming arguendo that the Miracle's conduct constituted a
material breach of the parties' oral understanding, this fact alone
would not render the Miracle's playing of the song pursuant to
[Albion's] permission a violation of [Albion's] copyright. Such a breach
would do no more than entitle [Albion] to rescind the agreement and
revoke [his] permission to play the song in the future, actions [he] did
not take during the relevant period.

Like the programmer in Graham v. James and the songwriter in Maxwell,
RT Graphics never formally withdrew previously-given permission which
allowed the alleged infringer to use the copyrighted material. See also
Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996)
(even assuming that movie producer materially breached licensing
agreement to use composer's song in film, composer never attempted to
exercise any right of rescission and summary judgment of
noninfringement of copyright was proper); Cities Serv. Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach
does not automatically and ipso facto end a contract. It merely gives
the injured party the right to end the agreement; . . . ."). In the
case at bar, the court finds that there was no rescission of the
contract by plaintiff. Moreover, the Postal Service's conduct was
insufficient to justify any rescission which could have taken place,
and did not indicate a repudiation of the licensing agreement.
Accordingly, the court holds that the Use Agreement was at all times
valid and enforceable during the course of this dispute, and any
remedy which the plaintiff may seek for its failure to receive credit
cannot properly be based on a theory of copyright infringement. "

regards,
alexander.

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