(OT) - Major Blow to Copyleft Theory
chris at metatrontech.com
Mon Aug 27 21:08:45 UTC 2007
Ok, this is going from slightly off-topic into a very obscure legal
discussion among mostly non-Lawyers (IANAL).
The Artistic License is clearly distinguishable from the De Forest Radio
Telephone vs. United States case for the following reason important
reason: in De Forest, a contract existed which included an exchange of
$1 for certain patent rights.
From the actual ruling:
"This contract was set out in the petition. In consideration of $1 and
other good and valuable considerations it granted a license to make,
use, install, operate, and lease, and to sell or otherwise dispose of to
others for sale, installation, and operation, apparatus and systems
embodying or made or operating in accordance with the invention. It
purported to give this license for the full terms of the patents and for
all transferable rights of the De Forest Company in the inventions,
except such as were expressly reserved by that company. The reservations
included nonassignable rights for the purpose of making the articles in
question for, and selling them to, the United States government for its
use. The instrument further provided that the Western Company and the De
Forest Company might respectively institute and conduct suits against
others for any of the patents within the fields in which each
respectively possessed rights, but that all such suits should be
conducted at the expense of the party bringing them, that party to
retain any judgment recovered in any such suits."
Personally though IANAL, I see no reason to apply this in any case where
there is absolutely no consideration, for example in the BSDL. Granted
$1 looks like a symbolic amount, but it does make the De Forest case
distinguishable as a contract one.
Thus, if I were a lawyer, I would argue that the court mis-applied De
Forest by overlooking the fact that in De Forest a bilateral contract
existed while in this case, it does not.
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