Re: 9th Cir. License Primer

[RJack]

On 3/24/2011 3:40 PM, RJack wrote:
> On 3/24/2011 10:51 AM, Alexander Terekhov wrote:
> > As they say:
> >
> > "The GPL Is a License, not a Contract."
> >
> > LMAO!
> >
> > Seriously, I am very disappointed that Best Buy did not raise the
> > issue of copyright v. contract breach thus far.


It is instructive to look at the Best Buy Inc. litigation and SFLC
claims concerning the GPL in light of the recent Ninth Circuit decision
in MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT,
https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi

The Ninth Circuit held:

"To recover for copyright infringement based on breach of a license
agreement, (1) the copying must exceed the scope of the defendant’s
license and (2) the copyright owner’s complaint must be grounded in an
exclusive right of copyright (e.g., unlawful reproduction or distribution)."

This holding is in accord with the U.S. Supreme Court's ruling:

"An unlicensed use of the copyright is not an infringement" unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
154-155."; SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S.
417 (1984).

The Best Buy Inc. et. al. complaint states:

Thus, to comply with the License, when a party distributes an object
code or executable form of BusyBox, they must include either (i) the
“complete corresponding machine-readable source code” or (ii) a “written
offer ... to give any third party ... a complete machine-readable copy
of the corresponding source code.”

The GPL's flaw is obvious. Neither including "(i) complete... source
code..." nor "(ii) a ...written offer..." is grounded in one of the
specific exclusive rights enumerated in the Copyright Act, thus
these acts comprise contractual covenants and *cannot* give rise to an
infringement claim.

Sincerely,
RJack :)