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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 15:58:17 -0000

David Kastrup wrote:
> RJack <> writes:
> > On 8/8/2010 12:07 PM, ZnU wrote:
> >>
> >> Basically, to argue that the Jacobsen v. Katzer reasoning doesn't
> >> apply to the GPL, you'd need to argue that there was some
> >> _additional_ factor relevant to the GPL that somehow undermined its
> >> use of the same language that was held to create a condition
> >> precedent in Jacobsen. What might that factor be?
> >>
> >
> > The Artistic License is not the General Public License.
> >
> > What you *will never admit to* is that the phrase "provided that"
> > omits the preposition "before" as in "provided that before".
> What you will never admit to is that judges have a brain rather than a
> linguistic computing circuitry which will brown out according to your
> fantastic theories shoestringed together along the lines of your wishful
> thinking.  Legal documents are not word games.

"Based on the both the allegations in the amended complaint and the
explicit language of the JMRI Project’s artistic license, the Court
finds that Plaintiff has chosen to distribute his decoder definition
files by granting the public a nonexclusive license to use, distribute
and copy the files. The nonexclusive license is subject to various
conditions, including the licensee’s proper attribution of the source of
the subject files. However, implicit in a nonexclusive license is the
promise not to sue for copyright infringement. See In re CFLC, Inc., 89
F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio Telephone Co. v.
United States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive
license is, in essence, a mere waiver of the right to sue the licensee
for infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d
555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive
license may be oral or by conduct and a such a license creates a waiver
of the right to sue in copyright, but not the right to sue for breach of
contract). Therefore, under this reasoning, Plaintiff may have a claim
against Defendants for breach the nonexclusive license agreement, but
perhaps not a claim sounding in copyright.

[... scope ...]

The license explicitly gives the users of the material, any member of
the public, “the right to use and distribute the [material] in a
more-orless customary fashion, plus the right to make reasonable
accommodations.” (See Suppl. Jacobsen Decl., Ex. A.) The scope of the
nonexclusive license is, therefore, intentionally broad. The condition
that the user insert a prominent notice of attribution does not limit
the scope of the license. Rather, Defendants’ alleged violation of the
conditions of the license may have constituted a breach of the
nonexclusive license, but does not create liability for copyright
infringement where it would not otherwise exist. Therefore, based on the
current record before the Court, the Court finds that Plaintiff’s claim
properly sounds in contract..."


(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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