Re: Settlements

[Hyman Rosen]

On 2/26/2010 9:32 AM, RJack wrote:
> "As we said in Bourne, when the contested issue is the scope of a
> license, rather than the existence of one, the copyright owner bears the
> burden of proving that the defendant's copying was unauthorized under
> the license and the license need not be pleaded as an affirmative
> defense." Graham v. James, 144 F.3d 229 (2nd Cir. 1998).

Sounds correct to me. It will be easy to demonstrate this,
since the defendants are not making GPLed sources properly
available.

This also, from the same decision:
<http://openjurist.org/144/f3d/229/graham-v-d-james>
    See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141,
    147 (2d Cir.1985) ("In the absence of more compelling
    evidence that the parties intended to create a condition,
    the negotiation provision must be construed as a promise
    or covenant.");

The GPL clearly establishes requirements as a condition for
receiving permission to copy and distribute.

> This situation is like Hyman Rosen's repeated denials that the U.S.
> Supreme Court's rulings are the controlling law within the United States
> federal system:

Of course I have denied no such thing.

> "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.

The unlicensed use was the copying and distribution of the work,
as granted exclusively to the rights holder by 17 USC 106.