Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals

[RJack]

On 12/21/2010 12:06 PM, Hyman Rosen wrote:

> On 12/21/2010 11:59 AM, Alexander Terekhov wrote:
> > An act of providing the source code is part of the act of copying?
> It's part of the act of copying and distributing. You must either
> convey the source code with the binary, or convey an offer of the
> source code. Failing to do either infringes on the copyright; failing
> to honor the offer infringes on a contract.

Hyman,

Will you NEVER, EVER be able to understand the difference between a
*scope of use* restriction on one of the 17 USC sec. 106 exclusive rights:

.......................................................................
"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).

Accordingly, if an unlicensed use of a copyrighted work does not
conflict with an "exclusive" right conferred by the statute, it is no
infringement of the holder's rights. No license is required by the
Copyright Act, for example, to sing a copyrighted lyric in the
shower.;Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,154 (1975).

"Consistent with this approach, we have held that the potential for
infringement exists only where the licensee’s action (1) exceeds the
license’s scope (2) in a manner that implicates one of the licensor’s
exclusive statutory rights."; MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT
(9th Cir 2010).
.......................................................................


and a contract *condition precedent*:

......................................................................
"A condition precedent is an act or event that must occur before a duty
to perform a promise arises. AES P.R., L.P. v. Alstom Power, Inc., 429
F. Supp. 2d 713, 717 (D.Del. 2006) (citing Delaware state law); see also
Restatement (Second) of Contracts § 224. Conditions precedent are
disfavored because they tend to work forfeitures. AES, 429 F. Supp. 2d
at 717 (internal citations omitted). Wherever possible, equity construes
ambiguous contract provisions as covenants rather than conditions."; MDY
INDUSTRIES v. BLIZZARD ENTERTAINMENT (9th Cir 2010).
......................................................................


Alexander and I attempted to explain multiple times that the Federal
Circuit was wrong in Jacobsen v. Katzer. You should really find an
easier topic than law to comment about. I'm afraid the subtleties of the
law are too difficult for you.

The GPL license is D.O.A. in a federal court under both federal
copyright and state contract law for more reasons than you will ever be
able to grasp.

Hyman, give up reading the law and try reading something that you can
understand.

Sincerely,
RJack :)