John Hasler wrote: > > Alexander Terekhov wrote: > > "Plaintiffsâ copyrights are unique and valuable property whose market > > value is impossible to assess" > > > > -- SOFTWARE FREEDOM LAW CENTER, INC. > > Noah Slater writes: > > What does this mean? > > Google "statutory damages". "Irreparable harm" is another possibly > relevant phrase.
Well well well, uncle Hasler. This is also relevant: http://jmri.sourceforge.net/k/docket/158.pdf "Plaintiffs Claim Sounds in Contract, Not Copyright. Plaintiff contends that he has a claim for copyright infringement, and has demonstrated Defendants copying of the protected expression, and is therefore, entitled to a presumption of irreparable harm. Plaintiffs claim for copyright infringement states that Defendants, without permission or consent, has [sic] made copies, distributed copies to the public, or created derivative works in violation of the exclusive rights. Defendants actions constitute infringement of plaintiffs copyright and exclusive rights under the Copyright Act. (See Amended Complaint at ¶ 100.) However, Plaintiffs copyrighted decoder definition files are subject to an open source software license that permits potential licensees, members of the public who have access to the files on the internet, to make copies, distribute and create derivative works from the software, provided the licensees give proper credit to the JMRI Project original creators. (See id. at ¶¶ 2, 41; see also Supplemental Declaration of Robert Jacobsen (Suppl. Jacobsen Del.), ¶ 2, Ex. A.) The license provides that potential licensees may make or give away verbatim copies of the source form ... without restriction provided that [the licensee] duplicate all of the original copyright notices and associated disclaimers. (See Suppl. Jacobsen Decl., Ex. A.) The license further provides that the user or licensee may distribute the copyrighted work in a more-or-less customary fashion, plus [have] the right to make reasonable modifications. (Id.) Lastly, the license rovides that the licensee may distribute [the material] in aggregate with other (possibly commercial) programs as part of a larger (possibly commercial) software distribution provided that [the licensee] not advertise [the material] as a product of [the licensees] own. (Id.) Based on the both the allegations in the amended complaint and the explicit language of the JMRI Projects artistic license, the Court finds that Plaintiff has chosen to distribute his decoder definition files by granting the public a nonexclusive license to use, distribute and copy the files. The nonexclusive license is subject to various conditions, including the licensees proper attribution of the source of the subject files. However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir. 1996), citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236, 242 (1927) (finding that a nonexclusive license is, in essence, a mere waiver of the right to sue the licensee for infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting of a nonexclusive license may be oral or by conduct and a such a license creates a waiver of the right to sue in copyright, but not the right to sue for breach of contract). Therefore, under this reasoning, Plaintiff may have a claim against Defendants for breach the nonexclusive license agreement, but perhaps not a claim sounding in copyright. However, merely finding that there was a license to use does not automatically preclude a claim for copyright infringement. A licensee infringes the owners copyright where its use exceeds the scope of the license. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir. 1989), citing Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (2d Cir. 1976). In S.O.S., the plaintiff held a copyright in a computer program and had granted defendant a licence to use the software and had explicitly reserved all other rights. The plaintiff claimed that by modifying the software the defendant had exceeded the scope of the license and therefore infringed the copyright. Id. Here, however, the JMRI Project license provides that a user may copy the files verbatim or may otherwise modify the material in any way, including as part of a larger, possibly commercial software distribution. The license explicitly gives the users of the material, any member of the public, the right to use and distribute the [material] in a more-orless customary fashion, plus the right to make reasonable accommodations. (See Suppl. Jacobsen Decl., Ex. A.) The scope of the nonexclusive license is, therefore, intentionally broad. The condition that the user insert a prominent notice of attribution does not limit the scope of the license. Rather, Defendants alleged violation of the conditions of the license may have constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist. Therefore, based on the current record before the Court, the Court finds that Plaintiffs claim properly sounds in contract and therefore Plaintiff has not met his burden of demonstrating likelihood of success on the merit of his copyright claim and is therefore not entitled to a presumption of irreparable harm. See Sun Microsystems, 188 F.3d at 1119. Plaintiff has not met his burden of demonstrating either a combination of probable success on the merits of his copyright claim nor the existence of serious questions going to the merits. See GoTo.com, 202 F.3d at 1204-05. Accordingly, the Court DENIES" -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
