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Re: Psystar's legal reply brief in response to Apple

From: Alexander Terekhov
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:28 -0000

ZnU wrote:
> > Once a copy is made under the GPL, it falls under "first sale" on the
> > only cause of action is the contract breach, not copyright infringement.
> I'm not sure I'm exactly grasping your point. Yes, the GPL, once
> accepted, is a contract. But it's a contract backed up by the force of
> copyright law, because if you don't accept the contract you have no
> right to distribute additional copies of the software.

You have no right to make a copy in the first place so you have to
accept the license contract in order to make a copy.

But after a copy has been made under the license contract, that copy
falls under 17 USC 109 (which limits exclusive distribution right of the
copyright owner) and the only cause of action regarding non-compliance
with the distribution requirements is a contract breach claim, not
copyright infringement claim.

The situation is exactly the same as with legally downloaded copies:

"There is no dispute that section 109 applies to works in digital
form. Physical copies of works in a digital format, such as CDs or
DVDs, are subject to section 109 in the same way as physical copies
in analog form. Similarly, a lawfully made tangible copy of a
digitally downloaded work, such as a work downloaded to a floppy
disk, Zip disk, or CD-RW, is clearly subject to section 109."

A copy can be "lawfully made" if it is made by the copyright
owner, made with the authorization of the copyright owner (e.g. 
the GPL) or made under one of the exceptions to the copyright 
owner's exclusive rights (such as compulsory licensing provisions 
of the copyright act).

Now going back to the breach of the license contract after a copy has 
been made and it's distribution time...

The contract laws recognize a concept called "efficient breach" which
*encourages* breach of (enforcable) obligations if it's economically
efficient to do so. Compliance with license/contract obligations is 
almost always voluntary -- if you choose not to comply, then you don't 
have to. You merely have to compensate the non-breaching party for his 
expectancy interest. Hint: damages.

See also:
(Law and economics and voluntary breach)

"Posner notes that: "When a breach of contract is established, the issue
becomes one the proper remedy. A starting point for analysis is Holmes's
view that is not the policy of the law to compel adherence to contracts
but only to require each party to choose between performing in
accordance with the contract and compensating the other party for any
injury resulting from a failure to perform. This view contains an
important economic insight." (Economic Analysis of Law, Boston-Toronto,
1977, p. 88)."

And what are the economic damages in thwe case of publicly available 
FREE software?


Also relevant:

(Jacobsen v. Katzer: District Court Again Denies Preliminary Injunction
Breach of Open Source License)

"... plaintiffs seeking to enforce an open source license would be well
advised to introduce evidence of economic harm suffered or the threat of
imminent economic harm if they seek injunctive relief."


(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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