Hyman Rosen wrote:
rjack wrote:
Eben Moglen is asking the Court of Appeals for the Federal Circuit
> to overturn the clear and unequivocal language of the Supreme Court
> in De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236,
> United States Supreme Court (1927):
"Whether this [act] constitutes a gratuitous license, or one
> for a reasonable compensation, must, of course, depend upon
> the circumstances; but the relation between the parties
> thereafter in respect of any suit brought must be held to be
> contractual, and not an unlawful invasion of the rights of
the owner."
Here's the decision: <http://supreme.justia.com/us/273/236/case.html>.
First of all, the case was about a patent, not a copyright. Second,
the decision also says
'Concede that, if the owner had said, "If you go on and infringe
my patent, I shall not attempt to enjoin you, but I shall
subsequently sue you for infringement," the tort would not be
waived;'
and that is similar to language contained in the GPL.
How 'bout this discussion:
"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)." Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)
Sincerely,
Rjack :)
-- "Whether express or implied, a license is a contract 'governed by ordinary
principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d
917, (United States Court of Appeals for the Federal Circuit 1995) --
-- "Although the United States Copyright Act, 17 U.S.C. ยงยง 101- 1332, grants
exclusive jurisdiction for infringement claims to the federal courts, those
courts construe copyrights as contracts and turn to the relevant state law to
interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d
749, (United States Court of Appeals for the Seventh Circuit 2006) --
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