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Re: Problem with GPLv3 FAQ about linking with Visual C++

From: Alexander Terekhov
Subject: Re: Problem with GPLv3 FAQ about linking with Visual C++
Date: Wed, 03 Feb 2010 15:23:27 +0100

David Kastrup wrote:
> Hyman Rosen <> writes:
> > On 2/2/2010 4:00 PM, Florian Weimer wrote:
> >> Well, that is heresy.  Official position is that dynamic linking
> >> creates a derivative work.  Hence the OpenSSL problem.
> >
> > The FSF does not get to decide what copyright law includes.
> The FSF gets to decide when to sue somebody over an assumed breach of
> their copyright.
> > Their official position might matter to help interpret what the GPL
> > means, but it cannot affect whether it applies.
> The GPL is a license.  It is the sole privilege of the licensor to set
> the rules when the license applies.  It is not the privilege of the
> licensor to set the rules when _copyright_ applies.

"While a party that owns copyright rights is ordinarily entitled to 
pursue infringement claims against any third party who violates them, 
the courts have recognized that the rights and remedies available to 
copyright holders change significantly when the owner elects to give 
others a nonexclusive license to use such property. In that situation, 
the owner/user relationship is fundamentally different. Absent a 
license, the rights of the copyright holder are governed by statutory 
and common law rules applicable to such rights. With a license, 
however, the terms and covenants of the license establish the 
applicable rules. See Effects Associates, Inc. v. Cohen, 908 F.2d 555, 
559 (9th Cir. 1990) (in granting a copyright license, the licensor 
gives up its right to sue the licensee for infringement). 

Recognizing that the existence of consensual licensing arrangements 
significantly changes the applicable rules and the expectations of the 
parties, federal courts have held that a party cannot normally pursue 
a copyright infringement action based upon the licensees breach of 
covenants in the license agreement. As a general rule, " if the 
[licensees] improper conduct constitutes a breach of a covenant 
undertaken by the licensee . . . and if such covenant constitutes an 
enforceable contractual obligation, then the licensor will have the 
cause of action for contract," not for copyright infringement. Graham 
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. 
Caldewey, 698 F.2d 991, 993 (9th Cir. 1983): 

[A] case does not arise under the federal copyright laws . . . 
merely because the subject matter of the action involves or affects a 
copyright. "


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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