Hyman Rosen wrote: > > On 4/13/2010 2:41 AM, Alexander Terekhov wrote: > > SFLC's claim of copyright infringement is baseless and frivolous > > It is neither. Erik Anderson is a copyright holder on BusyBox, > and the defendants are infringing on his copyright by copying > and distributing BusyBox in violation of the terms of its > license.
--------- 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. P.S. "Every computer program in the world, BusyBox included, exceeds the originality standards required by copyright law." Hyman Rosen <hyro...@mail.com> The Silliest GPL 'Advocate' P.P.S. "Of course correlation implies causation! Without this fundamental principle, no science would ever make any progress." Hyman Rosen <hyro...@mail.com> The Silliest GPL 'Advocate' -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list firstname.lastname@example.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss