Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Rjack]

Hyman Rosen wrote:
> Rjack wrote:
> > A requirement for a "scope of use" restriction is the the alleged
> >  use *must* violate sec. 106 rights in the absence of any license
> >  at all.
>
> The violating use is distributing a copy of the copyrighted work,

You truncated my statement: "Obviously there is no 'right of
attribution' mentioned in 17 USC 106. Shame on you!

> prohibited by 17 USC 106(3). The GPL (and other open licenses) 
> describes the manner in which copies may be made and distributed. 
> Making and distributing copies in any other way is outside the 
> scope of use. The Artistic License may have written its permissions
>  too broadly, but the GPL does not have that problem.

Where in the Copyright Act does it give permission to force another to
publish their independent, exclusive copyrighted code?

> > Neither GNUtians nor the CAFC in Jacobsen understand this 
> > critical distinction concerning "conditions".
>
> Oh, look, it's crank vs. court again!
>
> Here's another court, in Blizzard v. Donnelly:

http://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2006cv02555/322017/82/0.pdf
> If A grants a software license to B on the express condition that 
> the license will remain in effect only so long as B makes monthly 
> payments to A, and B then stops making payments to A, any 
> subsequent copying of the software to RAM by B would constitute 
> copyright infringement

Here's your Blizzard quote with more context:

"But to the extent MDY suggests that the act that causes the person to
fall outside the scope of the license and the act that constitutes
copyright infringement must be one and the same, MDY has cited no
Ninth Circuit authority. Nor does this proposition make logical sense.
If A grants a software license to B on the express condition that the
license will remain in effect only so long as B makes monthly payments
to A, and B then stops making payments to A, any subsequent copying of
the software to RAM by B would constitute copyright infringement --"

See the part of your Blizzard citation that says, "[M]DY has cited no
Ninth Circuit authority"?

Well I'll supply the required Ninth Circuit authority:

"In Rano, we recognized the rule applied in other circuits that once a
non-breaching party to an express copyright license obtains and
exercises a right of rescission by virtue of a material breach of the
agreement, any further distribution of the copyrighted material would
constitute infringement."; Fosson v. Palace Limited; 78 F.3d 1448 (9th
Cir. 1996).

The salient words are "... once a non-breaching party to an express
copyright license obtains and exercises...". The Second Circuit cited
*this very case* in Maxwell v. Veeck; 110 F.3d 749 2nd Cir. 1997):

"One party's breach does not automatically cause recission of a
bilateral contract. See Fosson v. Palace (Waterland), Ltd., 78 F.3d
1448, 1455 (9th Cir.1996) (recognizing "the rule applied in other
circuits that once a non-breaching party to an express copyright
license obtains and exercises a right of rescission by virtue of a
material breach of the agreement, any further distribution of the
copyrighted material would constitute infringement")".


1) This is a question concerning a *condition precedent* to existence
of the license and not one of *scope of permitted use*. THANK YOU for
affirming my claim.

2) As both the Ninth and Second Circuits have clearly ruled, recission
of a copyright license is NOT automatic and both circuit's rulings
*are* binding precedent on the district courts below them including
the Blizzard Court.

> So much for all your blather about "conditions precedent", or that 
> automatic termination of the license for non-compliance is 
> ineffective.

Sorry, the blather is all yours Hyman.

Sincerely,
Rjack