David Kastrup wrote: > > Alexander Terekhov <[EMAIL PROTECTED]> writes: > > > Karen Hill wrote: > >> > >> "I think, of the 500 distributions tracked by DistroWatch, probably 450 > >> of them are in trouble right now per this position.", > > > > Criminal penalties (costs plus attorney's fees in a civil action aside for > > a moment), per FSF's own theory of enforcement through cause of action for > > copyright infringement (not breach of contract claim), > > Sigh. We are talking about a _license_ here.
I'll take it that you've finally groked that in spite of bullshit rhetoric spouted by Moglen and his client, IP licenses are contracts. http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf "Nature of Suit: 190" http://www.ndd.uscourts.gov/DNDOpinions/Suits.htm "190 Other Contract Contract ... 820 Copyrights Property Rights 830 Patent Property Rights 840 Trademark Property Rights" ----- While a party that owns copyright rights is ordinarily entitled to pursue infringement claims against any third party who violates them, the courts have recognized that the rights and remedies available to copyright holders change significantly when the owner elects to give others a nonexclusive license to use such property. In that situation, the owner/user relationship is fundamentally different. Absent a license, the rights of the copyright holder are governed by statutory and common law rules applicable to such rights. With a license, however, the terms and covenants of the license establish the applicable rules. See Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990) (in granting a copyright license, the licensor gives up its right to sue the licensee for infringement). Recognizing that the existence of consensual licensing arrangements significantly changes the applicable rules and the expectations of the parties, federal courts have held that a party cannot normally pursue a copyright infringement action based upon the licensees breach of covenants in the license agreement. 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): [A] case does not arise under the federal copyright laws . . . merely because the subject matter of the action involves or affects a copyright. ----- regards, alexander. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
