(OT) - Major Blow to Copyleft Theory

Lawrence Rosen lrosen at rosenlaw.com
Mon Aug 27 16:38:46 UTC 2007

Regarding Alexander Terekhov's quotation [see below] from the De Forest
Radio case (273 U.S. 236), he omitted the very next sentence:

   "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; that is not this case."

I think we need to be very careful to distinguish the facts of the De Forest
Radio case from those of the current case, and from the ambiguous terms of
the [original] Artistic license. I note that other licenses handle the
matter of damages more precisely. For example, OSL 3.0 provides that "Any
use of the Original Work outside the scope of this License or after its
termination shall be subject to the requirements and penalties of copyright
or patent law in the appropriate jurisdiction."

The Jacobsen v. Katzen case is not a blow to anything other than perhaps (in
a limited way) the current plaintiff. The parties even admit that the
software at issue isn't used by either of them any more; in that sense the
case is moot. That matter should, in my opinion, be left to be resolved in
district court on its own facts on the remaining causes of action rather
than be blown up into a dramatic appeal in the Federal Circuit about
"copyleft" or whether open source licenses are licenses or contracts. Its
facts don't justify such drama. 

/Larry Rosen

> -----Original Message-----
> From: Alexander Terekhov [mailto:alexander.terekhov at gmail.com]
> Sent: Monday, August 27, 2007 6:04 AM
> To: John Cowan
> Cc: license-discuss at opensource.org
> Subject: Re: (OT) - Major Blow to Copyleft Theory
> This is from the Supreme Court of the United States:
> "Whether this 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."; DE FOREST RADIO TEL. &
> TEL. CO. v. UNITED STATES, 273 U.S. 236 (1927).

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