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

From: Hyman Rosen
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Sun, 02 Aug 2009 03:59:43 -0400
User-agent: Thunderbird (Windows/20090605)

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

The GPL describes how the work may be copied and distributed.
The attribution comes along with that.

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

Nowhere. No one is forced to publish their independent, exclusive
copyrighted code. But if they want to create, copy, and distribute
a collective work that includes GPLed code, they may do so only
as authorized by the GPL, and that authorization is given only if
the work as a whole is distributed under the GPL or the collection
is just an aggregation of works.

Well I'll supply the required Ninth Circuit authority:
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)

The GPL isn't a bilateral contract. These cases all revolve around
relatively ordinary agreements between two parties, subsequently
disputed. The unilateral and downstream nature of open licenses
present unique challenges, which the JMRI appeals court understood
and applied.

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 has the Blizzard decision been overturned on appeal yet?

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