(OT) - Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Mon Aug 27 10:56:15 UTC 2007

Interesting commentary from rjack (some folks seem to think that
Daniel Wallace is the person behind that nick :-) )

(Message from discussion Open source licenses are /actually/ contracts?!?)

Tim Tyler wrote:
> An amazing ruling - if it is upheld:

> "Model train software spat threatens future of open source Throws
> copyrights from the train"
> http://www.theregister.co.uk/2007/08/24/open_source_railroad/


Since the decision by the Supreme Court in De Forest Radio Telephone Co.
v. United States, 273 U.S. 236 (1927), intellectual property licenses
have been defined legally as contracts. So what's so amazing about
a Federal District Court following eighty years of uncontradicted
Supreme Court precedent?

Eben Moglen and Groklaw's spewing legal nonsense about the GPL not being
a contract are just that -- legal nonsense.



(Message from discussion Knotty panties and the GPL)

If you think the "model train" decision tied open source supporters
panties in a knot, just wait until they realize the impact of the
First Circuit's decision in:





On 8/24/07, Alexander Terekhov <alexander.terekhov at gmail.com> wrote:
> So to speak. :-)
> http://lawandlifesiliconvalley.blogspot.com/2007/08/new-open-source-legal-decision-jacobsen.html
> ------
> The decision makes two important points: (1) the Artistic License is a
> contract and (2) the failure to include the copyright notices was not
> a "restriction" on the scope of the license. The first point is
> important because the Free Software Foundation and some lawyers have
> taken the position that open source licenses are not contracts. They
> have good reasons for wishing to avoid some contract formalities, but
> this position has complicated discussions about the enforceability and
> remedies for open source licenses. This decision does not settle the
> issue for the GPL because it does not apply to the GPL and it is only
> a District Court decision, (lawyers really prefer to have an appellate
> decision, such as from the Ninth Circuit or the Supreme Court) but it
> does suggest how courts would approach the issue.
> The second point is very important because it deals with remedies.
> Generally, the remedy for contract violations under US law is damages,
> not "injunctive relief" (which means that the court order a party to
> cease their violation). On the other hand, copyright infringement
> generally includes a presumption that injunctive relief is
> appropriate. Thus, the question of whether the violation of a license
> is a contract violiation or copyright infringement (it can be both) is
> very important, because licensors would prefer to obtain an injunction
> prohibiting the breach of the license. The question turns on a nuanced
> legal issue of whether the term in the license is a "restriction on
> the scope" of the license or a covenant. In the first case, the
> failure to comply with the provision means that the licensee is
> outside the scope of the license and thus is a copyright infringer (as
> well as liable for breach of the contract). On the other hand, if the
> term is merely a covenant, then the failure to comply with it is a
> breach of contract. The most celebrated case dealing with this issue
> involved the Java license between Sun and Microsoft in which the court
> found that the obligation on Microsoft to meet the Java compatability
> tests was a covenant, not a restriction on the scope of the license
> and the court denied Sun an injunction on those grounds (Sun got an
> injunction for unfair competition).
> However, in this case, the court found that the condition to include a
> proper notice was not a restriction on the scope of the license and,
> thus, Katzen was not liable for copyright infringement. The court then
> denied the injunction. The court did not provide an analysis of why it
> reached this conclusion. I believe that this decision is simply wrong.
> The use of the term "condition" in the Artistic License should mean
> that the terms imposed are restrictions on the scope of the license.
> ------
> Oh really?
> "We think that the payment of royalties and the inclusion of a notice
> crediting James's authorship are to be considered covenants, not
> conditions. The construction of the licensing agreement is governed
> by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d
> 150, 153 (2d Cir. 1968). Generally speaking, New York respects a
> presumption that terms of a contract are covenants rather than
> conditions ... 'The law favors covenants, rather than conditions
> precedent.'), aff'd , 193 N.Y. 661 (1908)." Graham id.
> The GPL contains no conditions precendent. At least under New York law.
> Here the word "conditions" is historical and refers generally to
> "conditions precedent"... some condition that must be satisfied
> *before* a grant of rights is effective. Failure to meet a "condition
> precedent" stated in a contract gives rise to an infringement
> violation under section 504 because you never got permission in the
> first place. Conditions precedent are disfavored in the law:
> "Nor can we construe payment in full as a condition precedent to
> implying a license. Conditions precedent are disfavored and will not
> be read into a contract unless required by plain, unambiguous
> language." Sulmeyer v. United States (In re Bubble Up Delaware, Inc.),
> 684 F.2d 1259, 1264 (9th Cir.1982)
> regards,
> alexander.

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