Rahul Dhesi wrote:
David Kastrup <[email protected]> writes:
Rjack <[email protected]> writes:
Also there is no "evasion of an interpretation of the GPL"
since the GPL is not even under dispute. It would only be
under dispute if the defendants claimed compliance as a
defense....
...
Would the GPL be construed as a contract and interpreted
under state law?
Do you even read what you are replying to? If the defendant
does not claim compliance, the GPL is not relevant to the case.
I think Rjack has a valid point that a court might well treat the
GPL as a contract in such a case.
But the defendant, if he loses, still loses big, as shown below.
If the defendant argues that the plaintiff waived copyright, the
plaintiff will point out that if there was a waiver, it was a
waiver only for a limited time. As soon as the license (or
contract, if you call it that) automatically terminates, there is
no GPL in effect any more and there is no contract in effect any
more and there is no waiver in effect any more. If any further
copying occurs outside fair use, then all you have is pure
copyright infringement.
There is no "automatic termination" in the Second Circuit:
“. . . rescission of the contract only occurs upon affirmative acts
by the licensor, and a breach by one party does not automatically
result in rescission of a contract. Id. at 238 (”New York law does
not presume the rescission or abandonment of a contract and the
party asserting rescission or abandonment has the burden of proving
it”).”; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL
1238716 (E.D.N.Y.April 30, 2007).
At this point the plaintiff gets a permanent injunction and the
defendant is SOL.
Sincerely,
Rjack :)
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