Re: Problem with GPLv3 FAQ about linking with Visual C++

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 2/3/2010 9:23 AM, Alexander Terekhov wrote:
> > ... Absent a license
> 
> OK, so we get to ignore this part, since the GPL is a license.
> 
> > As a general rule, " if the
> > [licensees] improper conduct constitutes a breach of a covenant
> > undertaken by the licensee . . . and if such covenant constitutes an
> > enforceable contractual obligation, then the licensor will have the
> > cause of action for contract," not for copyright infringement. Graham
> > v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
> > Nimmer&  David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
> > (1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
> > (D. Ariz. 1996). As the Ninth Circuit explained in Topolos v.
> > Caldewey, 698 F.2d 991, 993 (9th Cir. 1983):
> 
> Funny you should mention Graham vs. James. Given your track
> record, we should expect that the citation contradicts your
> thesis. Sure enough <http://www.altlaw.org/v1/cases/1090996>:
>      Costello Publ'g Co., 670 F.2d at 1045 ("[E]ven if the
>      counterclaims asserted merely constitute a breach of
>      contract, an action for copyright infringement would lie
>      if the breach is so material that it allows the grantor
>      power to recapture the rights granted so that any further
>      use of the work was without authority."); 3 Nimmer on
>      Copyright, supra, § 10.15[A], at 10-123-10-125; see also
>      Lulirama Ltd. v. Axcess Broad. Servs., Inc., 128 F.3d 872,
>      882-83 (5th Cir.1997) (holding that non-exclusive license
>      is not revocable at will of licensor). Under New York law,
>      rescission is permitted if the breach is "material and
>      willful, or, if not willful, so substantial and fundamental
>      as to strongly tend to defeat the object of the parties in
>      making the contract." Septembertide Publ'g, B.V. v. Stein
>      and Day, Inc., 884 F.2d 675, 678 (2d Cir.1989)

Stupid Hyman. Yes, rescission is permitted in the case of material
breach but (1) it doesn't happen automatically and (2) in the case of
general public licenses there nothing preventing to create the contract
anew (fresh one) the moment you purport to have rescind the previous
one. The situation is no different when Microsoft would terminate my Win
XP EULA and I just go and buy another copy and create another EULA
relationship instead of terminated one. Got it now, silly?

regards,
alexander.

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