On 5/12/05, Raul Miller <[EMAIL PROTECTED]> wrote: > Just in case anyone was worried about this issue: > > On 5/12/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > On 5/11/05, Raul Miller <[EMAIL PROTECTED]> wrote: > > > So it should be possible to treat the GPL as if an implicit contract > > > had been signed, and proceed from there, and the damages inflicted by > > > GPL violation in such cases could be substantial. > > > > Signed, schmigned. It's an offer of contract, duly accepted; there > > are few contract terms which cannot be found to exist in a court of > > fact without a signed written agreement, and nothing in the GPL > > (except perhaps the agency to sublicense which appears to me to be the > > only legal way to implement Section 6) falls into that category. > > quoting http://caselaw.lp.findlaw.com/data2/circs/9th/9915046.html > > The parties also disputed whether Sun's suit was properly > considered as one for copyright infringement, as Sun con- > tended, or as one for breach of contract, as Microsoft con- > tended. The district court concluded that the claim was > properly considered as an infringement action, thereby enti- > tling Sun to a presumption of irreparable harm. > > It looks to me as if at least some courts will make a distinction > between breach of contract and copyright infringement.
And just in case anyone was fooled by Raul's myopic quotation of an appeals court's summary of a district court decision that it overturned: B. Presumption of Irreparable Harm Federal copyright law presumes irreparable harm from the infringement of a copyright. See Cadence Design Systems, 125 F.3d at 826-27. The district court held that this case is a copyright infringement case and not a contract case and there- fore presumed irreparable harm. See Sun Microsystems, 21 F. Supp. 2d at 1125. It is not clear, however, how the district court reached its decision that this case should be analyzed under the copyright infringement standard. It stated only that "Microsoft's argument that . . . Sun does not enjoy a presump- tion of irreparable harm merely rehashes its argument, which the court has rejected, that Sun's claims arise out of breach of contract rather than copyright infringement." Id. We were unable to determine, and the parties were unable to inform us at oral argument, where in the record before us the district court had previously addressed this issue. [7] Whether this is a copyright or a contract case turns on whether the compatibility provisions help define the scope of the license. Generally, a "copyright owner who grants a non- exclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement " and can sue only for breach of contract. Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copy- right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A] (1999). ... The injunction is VACATED and the case REMANDED to the district court for further proceedings. Cheers, - Michael
