Re: Drunkards at CAFC ruled

[Rjack]

Alexander Terekhov wrote:
> http://jmri.sourceforge.net/k/docket/cafc-pi-1/08-1001.pdf
>
> "Having determined that the terms of the Artistic License are 
> enforceable copyright conditions, we remand..."
>
> To repeat: "the terms of the Artistic License are enforceable 
> copyright conditions".
>
> Man oh man.
>
> "A condition is an event, not certain to occur, which must occur, 
> unless its non-occurrence is excused, BEFORE performance under a 
> contract becomes due." Restatement (Second) of Contracts  § 224 
> (1981).
>
> I also like this pearl:
>
> "Thus, if the terms of the Artistic License allegedly violated are 
> both covenants and conditions, they may serve to limit the scope of 
> the license and are governed by copyright law. If they are merely 
> covenants, by contrast, they are governed by contract law. See 
> Graham, 144 F.3d at 236-37 (whether breach of license is actionable 
> as copyright infringement or breach of contract turns on whether 
> provision breached is condition of the license, or mere covenant); 
> Sun Microsystems, 188 F.3d at 1121 (following Graham; independent 
> covenant does not limit scope of copyright license)."

The Federal Circuit ruled:

"Moreover, the District Court did not address the other restrictions of
the license, such as the requirement that all modification from the
original be clearly shown with a new name and a separate page for any
such modification that shows how it differs from the original."

Now, the requirement that "all modification from the original be clearly
shown" *cannot* be a condition on the scope of the *original* JMRI
author's rights in the Standard Version. The copyrights in the
*modifications* to the Standard Version package belong exclusively to
the *modifying* author. It is *impossible* for the original JMRI author
to claim a scope restriction on an exclusive right belonging to the
modifying author by definition in the Copyright Act:

17 USC 103. Subject matter of copyright: Compilations and derivative works.
(a) . . .
(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of,and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.

The sentence:

"The copyright in such work is independent of and DOES NOT AFFECT OR
ENLARGE THE SCOPE, duration, ownership, or subsistence of, any copyright
protection in the preexisting material" makes this fact crystal clear.

It is a mistake to believe the preexisting JMRI author has any right to
control the modifying author's contribution. The "distribution of a
derivative work" as a whole is not an exclusive right of either author
and is not even *mentioned* in the Copyright Act (grep the Copyright
Act). Distribution of a complete derivative work requires the mutual
agreement of both the preexisting author and the modifying author and is
a matter of pure contract law.

It is absolutely amazing that two sets of three independent appellate
judges in the same Federal Circuit managed to come to diametrically
opposed rulings on the subject of scope of use restrictions.

Sincerely.
Rjack

-- "[I]f an extra element is required instead of or in addition to the
acts of reproduction, performance, distribution or display in order to
constitute a state-created cause of action, there is no preemption,
provided that the extra element changes the nature of the action so that
it is qualitatively different from a copyright infringement claim."
Stromback v. New Line Cinema, 384 F.3d 283 (United States Court Of
Appeals for the Sixth Circuit 2004) --