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Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit Court

From: Alexander Terekhov
Subject: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit Court of Appeals
Date: Tue, 21 Dec 2010 15:04:06 +0100

"The second ruling provides guidance on when a restriction in a software
license is a condition, the breach of which constitutes copyright
infringement, and when a restriction is a covenant, the breach of which
is actionable only under contract law. The Court concluded that WoW’s
prohibitions against bots and use of unauthorized third-party software
were covenants rather than copyright enforceable conditions.

Central to the Court’s ruling was the holding that “for a licensee’s
violation of a contract to constitute copyright infringement, there must
be a nexus between the condition and the licensor’s exclusive rights of
copyright.”  Here, WoW players did not commit copyright infringement by
using Glider in violation of the WoW’s Terms of Use.

This Court’s holding seems to require that for a term to be a condition,
its violation must be an infringement of copyright. If this is truly the
holding, it is significant as other cases focuse on whether a term was
drafted to be a condition rather than a mere promise by analyzing the
license language. See, Jacobsen v Katzer, 535 F.3d 1373 (Fed. Cir. 2008)
summarized here.

Why overruled?

The Federal Circuit’s jurisdiction over an intellectual property case
depends upon whether the case includes a patent claim. Because its
jurisdiction relates to patent claims, the Federal Circuit has
acknowledged that it must apply the copyright standards of the regional
circuit that would otherwise have had jurisdiction over the case had it
not contained a patent claim. Thus, ironically, in patent/copyright
cases appealed to the Federal Circuit from courts within the Ninth
Circuit, the Federal Circuit would be required to follow the Ninth
Circuit’s MDY Industries ruling and reject its own previous Jacobsen

Hyman Rosen wrote:
> On 12/21/2010 8:29 AM, Alexander Terekhov wrote:
> > What impact could that reasoning have on the copyleft-like licenses?
> Nothing, because in the case of copylefts, the "disfavored

Like the requirement to provide attribution as in Jacobsen case?

> conduct" involves copying, which is covered by copyright law.

To understand your stupidity suppose I simply provide a written offer
regarding source code.

You come to me for the source code with that offer.

I tell: piss off silly Hyman.

How does that would violate the copyright act, you idiot?


(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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