As they say: "The GPL Is a License, not a Contract."
LMAO! Seriously, I am very disappointed that Best Buy did not raise the issue of copyright v. contract breach thus far. The language of Best Buy's latest filing in 1:09-cv-10155-SAS Software Freedom Conservancy, Inc. v. Best Buy Co., Inc. et al almost sounds that Best Buy buys into GPL "condition" moronity... I suppose that they are sure that they can win even under that "condition" so to speak. We'll see. RJack wrote: > > The Ninth Circuit Court of Appeals published a decision on Dec. 10th, > 2010, MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT that could serve as an > excellent primer for open source license drafters. > > https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi > > This decision is *REQUIRED READING* for the Free Software Foundation! > > "... [7] A copyright owner who grants a nonexclusive, limited > license ordinarily waives the right to sue licensees for copyright > infringement, and it may sue only for breach of contract. Sun I, 188 > F.3d at 1121 (internal quotations omitted). However, if the licensee > acts outside the scope of the license, the licensor may sue for > copyright infringement. Id. (citing S.O.S., Inc. v. Payday, Inc., 886 > F.2d 1081, 1087 (9th Cir. 1989)). Enforcing a copyright license raises > issues that lie at the intersection of copyright and contract law. Id. > at 1122. > > [8] We refer to contractual terms that limit a licenses scope as > conditions, the breach of which constitute copyright infringement. Id. > at 1120. We refer to all other license terms as covenants, the breach > of which is actionable only under contract law. Id. We distinguish > between conditions and covenants according to state contract law, to the > extent consistent with federal copyright law and policy. Foad Consulting > Group v. Musil Govan Azzalino, 270 F.3d 821, 827 (9th Cir. 2001)..." > > [9] A Glider user commits copyright infringement by playing WoW while > violating a ToU term that is a license condition. To establish copyright > infringement, then, Blizzard must demonstrate that the violated term > ToU § 4(B) is a condition rather than a covenant. Sun I, 188 F.3d at > 1122. Blizzards EULAs and ToUs provide that they are to be interpreted > according to Delaware law. Accordingly, we first construe them under > Delaware law, and then evaluate whether that construction is consistent > with federal copyright law and > policy. A covenant is a contractual promise, i.e., a manifestation of > intention to act or refrain from acting in a particular way, such > that the promisee is justified in understanding that the promisor > has made a commitment. See Travel Centers of Am. LLC v. Brog, No. > 3751-CC, 2008 Del. Ch. LEXIS 183, *9 (Del. Ch. Dec. 5, 2008); see also > Restatement (Second) of Contracts § 2 (1981). 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. See > Wilmington Tr. Co. v. Clark, 325 A.2d 383, 386 (Del. Ch. 1974). However, > if the contract is unambiguous, the court construes it according to its > terms. AES, 429 F. Supp. 2d at 717 (citing 17 Am. Jur. 2d Contracts § > 460 (2006)). > > [10] Applying these principles, ToU § 4(B)(ii) and (iii)s prohibitions > against bots and unauthorized third-party software are covenants rather > than copyright-enforceable conditions. See Greenwood v. CompuCredit > Corp., 615 F.3d 1204, 1212, (9th Cir. 2010) ([H]eadings and titles are > not meant to take the place of the detailed provisions of the text, and > . . . the heading of a section cannot limit the plain meaning of the > text. (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., > 331 U.S. 519, 52829 (1947))). Although ToU § 4 is titled, Limitations > on Your Use of the Service, nothing in that section conditions > Blizzards grant of a limited license on players compliance with ToU § > 4s restrictions. To the extent that the title introduces any ambiguity, > under Delaware law, ToU § 4(B) is not a condition, but is a contractual > covenant. Cf. Sun Microsystems, Inc. v. Microsoft Corp., 81 F. Supp. 2d > 1026, 1031-32 (N.D. Cal. 2000) (Sun II) (where Sun > licensed Microsoft to create only derivative works compatible with other > Sun software, Microsofts compatibility obligations > were covenants because the license was not specifically conditioned on > their fulfillment). > > To recover for copyright infringement based on breach of a license > agreement, (1) the copying must exceed the scope of > the defendants license and (2) the copyright owners complaint > must be grounded in an exclusive right of copyright (e.g., unlawful > reproduction or distribution). See Storage Tech. Corp. v. Custom > Hardware Engg & Consulting, Inc., 421 F.3d 1307, 1315-16 (Fed. Cir. > 2005). Contractual rights, however, can be much broader..." > > Sincerely, > RJack :) regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
