(OT) - NOT A Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Mon Jan 28 17:22:11 UTC 2008

Rjack :) opined ...

On Jan 28, 2008 10:00 AM, Alexander Terekhov
<alexander.terekhov at gmail.com> wrote:
> On Jan 25, 2008 8:32 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> > Alexander,
> >
> > There is no need to send these emails directly to me. I'm on license-discuss
> > already and I'll get copies of your emails automatically.
> >
> > If you were trying to tempt me to respond directly to your emails, I'd
> > rather not. Instead, I suggest that you reread the amicus brief filed by
> > Creative Commons and many friends. [1] This brief makes excellent arguments
> > that deserve to be addressed by the courts. Your citing to 1926 precedents,
> > while in some sense interesting for those of us lawyers who enjoy reading
> > Supreme Court decisions, is not likely to get the participants of this
> > discussion list to fully appreciate the issues raised by the Jacobsen case.
> I find that the following is a much better summary of issues raised by
> the Jacobsen case then the amicus brief filed by Creative Commons and
> many friends.
> http://jmri.sourceforge.net/k/docket/200.pdf (in reply to 198.pdf)

Kinda', sorta' blows Eben Moglen's theory about the GPL's "scope
violations" out of the water.

This quote from the defendant's Reply Brief serves to emphasize
my previous comment concerning "scope-of-use" restrictions
on a copyright or patent grant:

"As an initial matter, copyright law, as it is presently
written, does not recognize a cause of action for non-
economic attribution rights. Gilliam v. American
Broadcasting Cos., 538 F.2d 14, 24 (2nd Cir. 1976)
("American copyright law, as presently written, does not
recognize moral rights or provide a cause of action for
their violation, since the law seeks to vindicate the
economic, rather than the personal rights of authors.")."

The scope-of-use restrictions serve to enhance the *economic*
reward of a copyright or patent grant for the author or inventor.
Every decision by the Supreme Court concerning scope or
field-of-use has been decided in the context of commercial
exploitation. When the courts see the grant claims used in the
context of moral rights or for social engineering purposes the
claims are viewed with great skepticism.

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. §§ 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) --



"Because of their informal and diffuse nature, open source groups are
vulnerable to theft of their intellectual property. That theft, in the
form of copyright infringement, happened in this case, and Jacobsen
sought a preliminary injunction to enjoin Katzer and KAMIND's


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