Re: 9th Cir. License Primer
On 3/30/2011 6:04 PM, David Kastrup wrote: Alexander Terekhov writes: David Kastrup wrote: [...] What rock have you been living under? The whole point of the GPL (as opposed to, say, BSD style licenses) is that it is firmly rooted in copyright ... In context, copyright means that the owner has exclusive right to copy in order to sell (permissions to make) copies verbatim and copies of derivative works of his work without interference from http://en.wiktionary.org/wiki/freeloaders . . . In contrast, the GPL means . . . The GPL is about an imaginary "right" called "copyleft" that is allegedly created with a license that infects and steals other programmer's exclusive rights in their original creations and gives them to Karl Marx's heirs. a particular set of conditions under which the owner uses his exclusive rights to grant certain permissions to selected recipients of copies of his software. "Covenants" -- not conditions dummkopf. What rock have you been living under, silly dak? Do you really not understand what a license is? After all this time? Sincerely, RJack :) dummkopf -- n. A stupid person; a dolt. [German : dumm, dumb (from Middle High German tump, tumb , from Old High German tumb) + Kopf, head (from Middle High German, cup, cranium , from Old High German, cup , from Late Latin cuppa).] ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
Alexander Terekhov writes: > David Kastrup wrote: > [...] >> What rock have you been living under? The whole point of the GPL (as >> opposed to, say, BSD style licenses) is that it is firmly rooted in >> copyright ... > > In context, copyright means that the owner has exclusive right to > copy in order to sell (permissions to make) copies verbatim and > copies of derivative works of his work without interference from > http://en.wiktionary.org/wiki/freeloaders . . . In contrast, the > GPL means . . . a particular set of conditions under which the owner uses his exclusive rights to grant certain permissions to selected recipients of copies of his software. > What rock have you been living under, silly dak? Do you really not understand what a license is? After all this time? -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
David Kastrup wrote: [...] > What rock have you been living under? The whole point of the GPL (as > opposed to, say, BSD style licenses) is that it is firmly rooted in > copyright ... In context, copyright means that the owner has exclusive right to copy in order to sell (permissions to make) copies verbatim and copies of derivative works of his work without interference from http://en.wiktionary.org/wiki/freeloaders . . . In contrast, the GPL means . . . What rock have you been living under, silly dak? regards, alexander. -- 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
Alexander Terekhov writes: > David Kastrup wrote: > [...] >> The respective chances for success of copyright enforcement in court >> are what causes the FSF to get copyright assignments ... > > Dear dak, you know quite well that Stallman has no balls to sue for > copyright infringement because Stallman is in business of giving > "Copyright vs. Community" speeches. Imagine the publicity... BREAKING > NEWS: Copyright IS NOT AGAINST Community anymore, Stallman finally buys > into copyright, hallelujah!!! What rock have you been living under? The whole point of the GPL (as opposed to, say, BSD style licenses) is that it is firmly rooted in copyright in order to be able to _enforce_ copyleft. The FSF rarely sues because the prospective defendants tend to prefer getting into compliance (and the FSF's tendency to keep their ts crossed is not likely the least reason). Nowadays, most GPL compliance suits are from GPL licensors different from the FSF themselves. When was the last large-scale GCC violation (for example) you remember? Objective C was one, Motorola signal processors were another. Things started to look ugly, and the companies got their act together after varying amount of pressure, and came into compliance. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
On 3/30/2011 10:28 AM, David Kastrup wrote: RJack writes: As the SFLC and Erik Andersen are learning to their dismay, a valid Copyright Office registration of an open source project such as a version of BusyBox requires the registration of all the *individual* contributors' work all the way back to the original author's initial contribution. In order for a complex and evolving derivative work "as a whole" to be registered, each recursive, preexisting version must also be registered -- a virtually impossible task when multiple authors are involved see for example: [...] The chances of a GPL project's enforcement in a federal court is dead long before the judge ever reads the GPL. The respective chances for success of copyright enforcement in court are what causes the FSF to get copyright assignments for key pieces of GNU software, pretty much from the start of when the GPL has been designed. So it is not exactly news for them or the SFLC that distributed copyright makes for rougher sailing. There is no indication so far, however, that anything is going amiss here. That the situation leaves more to fantasize about for our resident legal nincompoops (as witnessed by their quite-worse-than-random prediction track records) until the case closes is not actually cause for worry. DAK is still live! I thought he had died and went to the great Gnuvana after Alex had beaten him about the cognitive head and body. Will miracles never cease? Sincerely, RJack :) You said WHAT? _ _ |L| |R| |M| /^^^\ |O| _|A|_ (| "o" |) _|F|_ _| |O| | _(_---_)_ | |L| |_ | | | | ||-|_| |_|-|| | | | | | | / \ | | \/ / /(. .)\ \ \/ \/ / / | . | \ \ \/ \ \/ /||Y||\ \/ / \__/ || || \__/ () () || || ooO Ooo ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
David Kastrup wrote: [...] > The respective chances for success of copyright enforcement in court > are what causes the FSF to get copyright assignments ... Dear dak, you know quite well that Stallman has no balls to sue for copyright infringement because Stallman is in business of giving "Copyright vs. Community" speeches. Imagine the publicity... BREAKING NEWS: Copyright IS NOT AGAINST Community anymore, Stallman finally buys into copyright, hallelujah!!! regards, alexander. -- 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
RJack writes: > As the SFLC and Erik Andersen are learning to their dismay, a valid > Copyright Office registration of an open source project such as a > version of BusyBox requires the registration of all the *individual* > contributors' work all the way back to the original author's initial > contribution. In order for a complex and evolving derivative work "as a > whole" to be registered, each recursive, preexisting version must also > be registered -- a virtually impossible task when multiple authors are > involved see for example: [...] > The chances of a GPL project's enforcement in a federal court is dead > long before the judge ever reads the GPL. The respective chances for success of copyright enforcement in court are what causes the FSF to get copyright assignments for key pieces of GNU software, pretty much from the start of when the GPL has been designed. So it is not exactly news for them or the SFLC that distributed copyright makes for rougher sailing. There is no indication so far, however, that anything is going amiss here. That the situation leaves more to fantasize about for our resident legal nincompoops (as witnessed by their quite-worse-than-random prediction track records) until the case closes is not actually cause for worry. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
As the SFLC and Erik Andersen are learning to their dismay, a valid Copyright Office registration of an open source project such as a version of BusyBox requires the registration of all the *individual* contributors' work all the way back to the original author's initial contribution. In order for a complex and evolving derivative work "as a whole" to be registered, each recursive, preexisting version must also be registered -- a virtually impossible task when multiple authors are involved see for example: "[5] Morris contends that the holding in Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739, 747 (2d Cir. 1998), that the registration of a derivative work meets the jurisdictional requirements of 411(a) in a suit for infringement of the original work where the claimant owns the copyright in both, requires us to find that if Cond Nast was a "copyright owner" of Morris's articles at the time it registered the issues of Allure in which they appeared, then those articles are registered for the purposes of 411(a). See Woods v. Universal Studios, Inc., 920 F. Supp. 62, 64 (S.D.N.Y. 1996), cited in Streetwise Maps, 159 F.3d at 747. We disagree. In Streetwise Maps, the plaintiff apparently owned all of the rights to the original work at the time it registered the copyright. See 159 F.3d at 746-47. In this case, it is undisputed that Cond Nast owned only some of the rights to Morris's articles at the time it registered the relevant issues of Allure."; MORRIS v. BUSINESS CONCEPTS, INC., 283 F.3d 502 (2d Cir. 2001). This leaves the remaining possibility that an individual contributor may register with the Copyright Office only his own *exclusive* contribution of source code. This requires submitting for registration the source code files *not* modified or patched by other project members. The next looming question is how do you find and compare an individual author's contribution in thousands to possibly millions of bytes of object code in some executable program? The chances of a GPL project's enforcement in a federal court is dead long before the judge ever reads the GPL. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
RJack wrote: [...] > Now, the SFLC utterly ignores the circuit precedent and claims: > > "Further, once Best Buy made a distribution of BusyBox that did not > comply with the license terms, the license terminated, and therefore any > further act of copying or distributing BusyBox by Best Buy (even if in > compliance with the license) is without Andersen's permission. This is well known Stallman/FSF/SFLC moronity regarding termination of licensing contracts due to (material) breach. To wit: http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF (See 6 Contract Law Issues) "Automatic termination of the license in case of breach of license terms (condition subsequent) - In a contract the termination is ultima ratio and needs prior notification" and http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c "In addition, prior to the filing of the infringement suit, RT Graphics never took affirmative steps to terminate the license which it had granted. This court agrees with other courts which have previously held that such a measure is necessary on the part of the copyright holder. In Graham v. James, the Court of Appeals for the Second Circuit stated that "[e]ven assuming [the publisher] materially breached the licensing agreement and that [the programmer] was entitled to rescission, such rescission did not occur automatically without some affirmative steps on [the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of Appeals for the Eleventh Circuit expressed a similar view: [E]ven assuming arguendo that the Miracle's conduct constituted a material breach of the parties' oral understanding, this fact alone would not render the Miracle's playing of the song pursuant to [Albion's] permission a violation of [Albion's] copyright. Such a breach would do no more than entitle [Albion] to rescind the agreement and revoke [his] permission to play the song in the future, actions [he] did not take during the relevant period. Like the programmer in Graham v. James and the songwriter in Maxwell, RT Graphics never formally withdrew previously-given permission which allowed the alleged infringer to use the copyrighted material. See also Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996) (even assuming that movie producer materially breached licensing agreement to use composer's song in film, composer never attempted to exercise any right of rescission and summary judgment of noninfringement of copyright was proper); Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement; . . . ."). In the case at bar, the court finds that there was no rescission of the contract by plaintiff. Moreover, the Postal Service's conduct was insufficient to justify any rescission which could have taken place, and did not indicate a repudiation of the licensing agreement. Accordingly, the court holds that the Use Agreement was at all times valid and enforceable during the course of this dispute, and any remedy which the plaintiff may seek for its failure to receive credit cannot properly be based on a theory of copyright infringement. " BTW, even assuming successful rescission/termination with affirmative steps on the licensor part, what prevents the former licensee from entering into licensing relationship anew? The situation is no different when Microsoft would terminate my Windows 7 EULA and I just go and buy another copy and create another EULA relationship instead of terminated one. So just take a license, breach it, wait for termination, take another license, breach it, wait for termination... Rinse lather repeat. To prevent that, the license contract must specify a condition precedent regarding previously terminated licenses and condition the new grant on successfull resolution of the previous breach dispute. regards, alexander. -- 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
On Tue, 29 Mar 2011 17:14:11 -0400, RJack wrote: > The SFLC is eager to cite Second Circuit authority when it suits its > purposes: > > > But when it doesn't suit it purpose the SFLC chooses to utterly ignore > Second Circuit precedent such as: > > > > The games have begun! > > Sincerely, > RJack :) That is exactly what a lawyer is supposed to do. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
The SFLC is eager to cite Second Circuit authority when it suits its purposes: "...[T]he Second Circuit in Salinger abrogated the longstanding practice of presuming irreparable harm based upon the plaintiff's prima facie claim of copyright infringement... [T]he Second Circuit has approved of this practice. See e.g., Pharmaceutical Soc'y of New York, Inc. v. New York StateDept. of Soc. Servs., 50 F.3d 1168, 1174-75 (2d Cir. 1995)."; Plaintiff's Memorandum on Motion. But when it doesn't suit it purpose the SFLC chooses to utterly ignore Second Circuit precedent such as: "One party's breach does not automatically cause recission of a bilateral contract. See Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir.1996) (recognizing "the rule applied in other circuits that once a non-breaching party to an express copyright license obtains and exercises a right of rescission by virtue of a material breach of the agreement, any further distribution of the copyrighted material would constitute infringement") (emphasis added); Hyman v. Cohen, 73 So.2d 393, 397 (Fla.1954) (" "A material breach, as where the breach goes to the whole consideration of the contract, gives to the injured party the right to rescind the contract or to treat it as a breach of the entire contract' ") (quoting 12 Am.Jur. Contracts § 389) (emphasis added); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.15[A], at 10-125-126 (1996) (" Upon such rescission, the assignment or license is terminated and the copyright proprietor may hold his former grantee liable as an infringer for subsequent use of the work.") (emphasis added)." Now, the SFLC utterly ignores the circuit precedent and claims: "Further, once Best Buy made a distribution of BusyBox that did not comply with the license terms, the license terminated, and therefore any further act of copying or distributing BusyBox by Best Buy (even if in compliance with the license) is without Andersen's permission. Andersen Decl. Ex. 2, § 4 (“You may not copy, modify, sublicense, or distribute [BusyBox] except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute [BusyBox] is void, and will automatically terminate your rights under this License.”)."; Plainiff's Reply Memeorandum. The games have begun! Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
RJack wrote: [...] > The GPL's flaw is obvious. Neither including "(i) complete... source > code..." nor "(ii) a ...written offer..." is grounded in one of the > specific exclusive rights enumerated in the Copyright Act, thus > these acts comprise contractual covenants and *cannot* give rise to an > infringement claim. + 1 regards, alexander. -- 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
On 3/24/2011 3:40 PM, RJack wrote: On 3/24/2011 10:51 AM, Alexander Terekhov wrote: As they say: "The GPL Is a License, not a Contract." LMAO! Seriously, I am very disappointed that Best Buy did not raise the issue of copyright v. contract breach thus far. It is instructive to look at the Best Buy Inc. litigation and SFLC claims concerning the GPL in light of the recent Ninth Circuit decision in MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT, https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi The Ninth Circuit held: "To recover for copyright infringement based on breach of a license agreement, (1) the copying must exceed the scope of the defendant’s license and (2) the copyright owner’s complaint must be grounded in an exclusive right of copyright (e.g., unlawful reproduction or distribution)." This holding is in accord with the U.S. Supreme Court's ruling: "An unlicensed use of the copyright is not an infringement" unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at 154-155."; SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417 (1984). The Best Buy Inc. et. al. complaint states: Thus, to comply with the License, when a party distributes an object code or executable form of BusyBox, they must include either (i) the “complete corresponding machine-readable source code” or (ii) a “written offer ... to give any third party ... a complete machine-readable copy of the corresponding source code.” The GPL's flaw is obvious. Neither including "(i) complete... source code..." nor "(ii) a ...written offer..." is grounded in one of the specific exclusive rights enumerated in the Copyright Act, thus these acts comprise contractual covenants and *cannot* give rise to an infringement claim. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
On 3/24/2011 10:51 AM, Alexander Terekhov wrote: As they say: "The GPL Is a License, not a Contract." LMAO! Seriously, I am very disappointed that Best Buy did not raise the issue of copyright v. contract breach thus far. The language of Best Buy's latest filing in 1:09-cv-10155-SAS Software Freedom Conservancy, Inc. v. Best Buy Co., Inc. et al almost sounds that Best Buy buys into GPL "condition" moronity... I suppose that they are sure that they can win even under that "condition" so to speak. We'll see. It's all about strategy. The present motion is for a Preliminary Injunction -- not Summary Judgement. Best Buy is adhering to the principle espoused in the pleadings -- "The license speaks for itself". The focus of Best Buy's attorneys is to defeat the motion -- not defeat the GPL at this point. If Best Buy defeats the motion because it claims "compliance" with an unenforceable license, the defendant *still wins*. It is glaringly obvious that Best Buy's attorneys consider GPL "viral" claims to be complete nonsense. To wit: 1) "...Plaintiffs used their pretended enforcement rights in the entire BusyBox code, as well as other open source software, to attempt to extract prior review and veto rights over future models of Insignia Blu-ray players and firmware releases." See the: "...*pretended* enforcement rights in the entire BusyBox code..." 2) "...Under that license, anyone can copy or distribute the “Program,” which at best is Mr. Andersen’s contribution to BusyBox after 2001, provided that such distributor meets only one of certain conditions..." See the: "...the 'Program,' *which at best* is Mr. Andersen’s contribution..." 3) "...Yet, later that same day, Plaintiffs continued to demand source code for other open source software, and proprietary code, that has nothing to do with BusyBox." See the: "...*proprietary code, that has nothing to do with BusyBox*." 4) "...Conservancy demanded that Broadcom include proprietary source code with the code that would be offered under Paragraph 3 of GPLv2. Conservancy argued that the particular file in question was a derivative work of an open source Linux kernel. (Id. at ¶ 12.) But Conservancy does not have rights to Linux, nor does it have rights to Broadcom’s proprietary source code. Whether that code was proprietary to Broadcom, or derivative of Linux open source code, it is completely unrelated to BusyBox." See the: "...nor does it have rights to Broadcom’s *proprietary source* code..." Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: 9th Cir. License Primer
As they say: "The GPL Is a License, not a Contract." LMAO! Seriously, I am very disappointed that Best Buy did not raise the issue of copyright v. contract breach thus far. The language of Best Buy's latest filing in 1:09-cv-10155-SAS Software Freedom Conservancy, Inc. v. Best Buy Co., Inc. et al almost sounds that Best Buy buys into GPL "condition" moronity... I suppose that they are sure that they can win even under that "condition" so to speak. We'll see. RJack wrote: > > The Ninth Circuit Court of Appeals published a decision on Dec. 10th, > 2010, MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT that could serve as an > excellent primer for open source license drafters. > > https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi > > This decision is *REQUIRED READING* for the Free Software Foundation! > > "... [7] A copyright owner who grants a nonexclusive, limited > license ordinarily waives the right to sue licensees for copyright > infringement, and it may sue only for breach of contract. Sun I, 188 > F.3d at 1121 (internal quotations omitted). However, if the licensee > acts outside the scope of the license, the licensor may sue for > copyright infringement. Id. (citing S.O.S., Inc. v. Payday, Inc., 886 > F.2d 1081, 1087 (9th Cir. 1989)). Enforcing a copyright license raises > issues that lie at the intersection of copyright and contract law. Id. > at 1122. > > [8] We refer to contractual terms that limit a licenses scope as > conditions, the breach of which constitute copyright infringement. Id. > at 1120. We refer to all other license terms as covenants, the breach > of which is actionable only under contract law. Id. We distinguish > between conditions and covenants according to state contract law, to the > extent consistent with federal copyright law and policy. Foad Consulting > Group v. Musil Govan Azzalino, 270 F.3d 821, 827 (9th Cir. 2001)..." > > [9] A Glider user commits copyright infringement by playing WoW while > violating a ToU term that is a license condition. To establish copyright > infringement, then, Blizzard must demonstrate that the violated term > ToU § 4(B) is a condition rather than a covenant. Sun I, 188 F.3d at > 1122. Blizzards EULAs and ToUs provide that they are to be interpreted > according to Delaware law. Accordingly, we first construe them under > Delaware law, and then evaluate whether that construction is consistent > with federal copyright law and > policy. A covenant is a contractual promise, i.e., a manifestation of > intention to act or refrain from acting in a particular way, such > that the promisee is justified in understanding that the promisor > has made a commitment. See Travel Centers of Am. LLC v. Brog, No. > 3751-CC, 2008 Del. Ch. LEXIS 183, *9 (Del. Ch. Dec. 5, 2008); see also > Restatement (Second) of Contracts § 2 (1981). A condition precedent is > an act or event that must occur before a duty to perform a promise > arises. AES P.R., L.P. v. Alstom Power, Inc., 429 F. Supp. 2d 713, 717 > (D. Del. 2006) (citing Delaware state law); see also Restatement > (Second) of Contracts § 224. Conditions precedent are disfavored > because they tend to work forfeitures. AES, 429 F. Supp. 2d at 717 > (internal citations omitted). Wherever possible, equity construes > ambiguous contract provisions as covenants rather than conditions. See > Wilmington Tr. Co. v. Clark, 325 A.2d 383, 386 (Del. Ch. 1974). However, > if the contract is unambiguous, the court construes it according to its > terms. AES, 429 F. Supp. 2d at 717 (citing 17 Am. Jur. 2d Contracts § > 460 (2006)). > > [10] Applying these principles, ToU § 4(B)(ii) and (iii)s prohibitions > against bots and unauthorized third-party software are covenants rather > than copyright-enforceable conditions. See Greenwood v. CompuCredit > Corp., 615 F.3d 1204, 1212, (9th Cir. 2010) ([H]eadings and titles are > not meant to take the place of the detailed provisions of the text, and > . . . the heading of a section cannot limit the plain meaning of the > text. (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., > 331 U.S. 519, 52829 (1947))). Although ToU § 4 is titled, Limitations > on Your Use of the Service, nothing in that section conditions > Blizzards grant of a limited license on players compliance with ToU § > 4s restrictions. To the extent that the title introduces any ambiguity, > under Delaware law, ToU § 4(B) is not a condition, but is a contractual > covenant. Cf. Sun Microsystems, Inc. v. Microsoft Corp., 81 F. Supp. 2d > 1026, 1031-32 (N.D. Cal. 2000) (Sun II) (where Sun > licensed Microsoft to create only derivative works compatible with other > Sun software, Microsofts compatibility obligations > were covenants because the license was not specifically conditioned on > their fulfillment). > > To recover for copyright infringement based on breach of a license > agreement, (1) the copying must exceed the scope of > the defendants
9th Cir. License Primer
The Ninth Circuit Court of Appeals published a decision on Dec. 10th, 2010, MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT that could serve as an excellent primer for open source license drafters. https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi This decision is *REQUIRED READING* for the Free Software Foundation! "... [7] “A copyright owner who grants a nonexclusive, limited license ordinarily waives the right to sue licensees for copyright infringement, and it may sue only for breach of contract.” Sun I, 188 F.3d at 1121 (internal quotations omitted). However, if the licensee acts outside the scope of the license, the licensor may sue for copyright infringement. Id. (citing S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989)). Enforcing a copyright license “raises issues that lie at the intersection of copyright and contract law.” Id. at 1122. [8] We refer to contractual terms that limit a license’s scope as “conditions,” the breach of which constitute copyright infringement. Id. at 1120. We refer to all other license terms as “covenants,” the breach of which is actionable only under contract law. Id. We distinguish between conditions and covenants according to state contract law, to the extent consistent with federal copyright law and policy. Foad Consulting Group v. Musil Govan Azzalino, 270 F.3d 821, 827 (9th Cir. 2001)..." [9] A Glider user commits copyright infringement by playing WoW while violating a ToU term that is a license condition. To establish copyright infringement, then, Blizzard must demonstrate that the violated term — ToU § 4(B) — is a condition rather than a covenant. Sun I, 188 F.3d at 1122. Blizzard’s EULAs and ToUs provide that they are to be interpreted according to Delaware law. Accordingly, we first construe them under Delaware law, and then evaluate whether that construction is consistent with federal copyright law and policy. A covenant is a contractual promise, i.e., a manifestation of intention to act or refrain from acting in a particular way, such that the promisee is justified in understanding that the promisor has made a commitment. See Travel Centers of Am. LLC v. Brog, No. 3751-CC, 2008 Del. Ch. LEXIS 183, *9 (Del. Ch. Dec. 5, 2008); see also Restatement (Second) of Contracts § 2 (1981). A condition precedent is an act or event that must occur before a duty to perform a promise arises. AES P.R., L.P. v. Alstom Power, Inc., 429 F. Supp. 2d 713, 717 (D. Del. 2006) (citing Delaware state law); see also Restatement (Second) of Contracts § 224. Conditions precedent are disfavored because they tend to work forfeitures. AES, 429 F. Supp. 2d at 717 (internal citations omitted). Wherever possible, equity construes ambiguous contract provisions as covenants rather than conditions. See Wilmington Tr. Co. v. Clark, 325 A.2d 383, 386 (Del. Ch. 1974). However, if the contract is unambiguous, the court construes it according to its terms. AES, 429 F. Supp. 2d at 717 (citing 17 Am. Jur. 2d Contracts § 460 (2006)). [10] Applying these principles, ToU § 4(B)(ii) and (iii)’s prohibitions against bots and unauthorized third-party software are covenants rather than copyright-enforceable conditions. See Greenwood v. CompuCredit Corp., 615 F.3d 1204, 1212, (9th Cir. 2010) (“[H]eadings and titles are not meant to take the place of the detailed provisions of the text,” and . . . “the heading of a section cannot limit the plain meaning of the text.” (quoting Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528—29 (1947))). Although ToU § 4 is titled, “Limitations on Your Use of the Service,” nothing in that section conditions Blizzard’s grant of a limited license on players’ compliance with ToU § 4’s restrictions. To the extent that the title introduces any ambiguity, under Delaware law, ToU § 4(B) is not a condition, but is a contractual covenant. Cf. Sun Microsystems, Inc. v. Microsoft Corp., 81 F. Supp. 2d 1026, 1031-32 (N.D. Cal. 2000) (“Sun II”) (where Sun licensed Microsoft to create only derivative works compatible with other Sun software, Microsoft’s “compatibility obligations” were covenants because the license was not specifically conditioned on their fulfillment). To recover for copyright infringement based on breach of a license agreement, (1) the copying must exceed the scope of the defendant’s license and (2) the copyright owner’s complaint must be grounded in an exclusive right of copyright (e.g., unlawful reproduction or distribution). See Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307, 1315-16 (Fed. Cir. 2005). Contractual rights, however, can be much broader..." Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss