David Kastrup wrote: [...] > to say "your honor, I plead not accepting the license, thus am not > bound to its conditions, and would prefer to be tried in criminal > court for copyright violation than here for breach of license"?
*Breach* of IP license is a contract claim, idiot. The "binding" things in a license contract are covenants. Conditions define the scope and distinguish lawfully made copies from unlawfully made copies (such as copies with removed notices for example... unless it falls under some exceptions to exclusive right like fair use, etc.). Regarding unlawfully made copies, the copyright owner will have the cause of action for copyright infringement in a civil action (criminal prosecution aside for a moment). ----- While a party that owns copyright rights is ordinarily entitled to pursue infringement claims against any third party who violates them, the courts have recognized that the rights and remedies available to copyright holders change significantly when the owner elects to give others a nonexclusive license to use such property. In that situation, the owner/user relationship is fundamentally different. Absent a license, the rights of the copyright holder are governed by statutory and common law rules applicable to such rights. With a license, however, the terms and covenants of the license establish the applicable rules. See Effects Associates, Inc. v. Cohen , 908 F.2d 555, 559 (9th Cir. 1990) (in granting a copyright license, the licensor gives up its right to sue the licensee for infringement). Recognizing that the existence of consensual licensing arrangements significantly changes the applicable rules and the expectations of the parties, federal courts have held that a party cannot normally pursue a copyright infringement action based upon the licensees breach of covenants in the license agreement. As a general rule, " if the [licensees] improper conduct constitutes a breach of a covenant undertaken by the licensee . . . and if such covenant constitutes an enforceable contractual obligation, then the licensor will have the cause of action for contract," not for copyright infringement. Graham v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 (1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 (D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. Caldewey, 698 F.2d 991, 993 (9th Cir. 1983): [A] case does not arise under the federal copyright laws . . . merely because the subject matter of the action involves or affects a copyright. ----- regards, alexander. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss