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

From: Hyman Rosen
Subject: Re: Problem with GPLv3 FAQ about linking with Visual C++
Date: Wed, 03 Feb 2010 09:46:25 -0500
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On 2/3/2010 9:23 AM, Alexander Terekhov wrote:
... Absent a license

OK, so we get to ignore this part, since the GPL is a license.

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):

Funny you should mention Graham vs. James. Given your track
record, we should expect that the citation contradicts your
thesis. Sure enough <>:
    Costello Publ'g Co., 670 F.2d at 1045 ("[E]ven if the
    counterclaims asserted merely constitute a breach of
    contract, an action for copyright infringement would lie
    if the breach is so material that it allows the grantor
    power to recapture the rights granted so that any further
    use of the work was without authority."); 3 Nimmer on
    Copyright, supra, ยง 10.15[A], at 10-123-10-125; see also
    Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d 872,
    882-83 (5th Cir.1997) (holding that non-exclusive license
    is not revocable at will of licensor). Under New York law,
    rescission is permitted if the breach is "material and
    willful, or, if not willful, so substantial and fundamental
    as to strongly tend to defeat the object of the parties in
    making the contract." Septembertide Publ'g, B.V. v. Stein
    and Day, Inc., 884 F.2d 675, 678 (2d Cir.1989)

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