subject:"Copyright Misuse Doctrine in Apple v. Psystar"


amicus_curious wrote:

With a URL of download.Verizon.net?


Which contains actiontec gateway?
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-02 Thread David Kastrup

c.c.ei...@xrexxcopyr.usenet.us.com (Rahul Dhesi) writes:

 David Kastrup d...@gnu.org writes:

Rjack u...@example.net 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.

Huh?  You can't be held to a contract you did not sign.

 But the defendant, if he loses, still loses big, as shown below.

Sure, but the validity of the GPL does not figure in the game.

-- 
David Kastrup
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-02 Thread Rahul Dhesi

David Kastrup d...@gnu.org writes:

 I think Rjack has a valid point that a court might well treat the GPL
 as a contract in such a case.

Huh?  You can't be held to a contract you did not sign.

Does every contract require a signature?
-- 
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http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Rjack wrote:
The settlement agreement will, of course, be an agreement to 
pay Cisco's attorney fees and require the SFLC to voluntarily 
dismiss their silly propaganda suit -- same as always.


What evidence do you have that the SFLC has ever payed the 
attorney's fees for the other side? I'm sure you wish this was 
true, of course.


The law firms hired by the defendants continue in business in
beautiful, spacious office buildings a fact that may easily be
publicly observed.



The publicly visible part of the settlement, of course, will be 
that the GPLed sources are made properly available.


As part of a settlement agreement, the plaintiffs are paying the
defendants a rather handsome service fee to publish the source code
on the defendants' servers.



Nothing short of review by a court will settle the legal 
enforcability of the GPL. The SFLC will NEVER, NEVER 
voluntarily allow a federal district judge to interpret the GPL

 on the merits.


No defendant is ever going to allow a court to settle this on its
 merits, since they would lose.


No defendant has ever filed a voluntary dismissal to prevent review
on the merits -- they just automatically receive one when they call
the SFLC's bluff. He. He.


That's why they settle and agree to honor the GPL.


Sincerely,
Rjack :)

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:
[...]
 I will go with the CAFC's analysis over yours.

The CAFC ruled:

http://www.cafc.uscourts.gov/opinions/08-1001.pdf

Under California contract law, provided that typically denotes a
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)

The Diepenbrock v. Luiz case is quoted in full below. The case was about
real condition precedent (payment for improvements) in the event of
lease (license) termination by lessor (licensor) upon sale of leased
property. The lease would not terminate until such payment is made. IOW
the right to terminate the contract arised only after the payment is
made. To use that case to find any conditions precedent in the Artistic
License is utter idiocy. The CAFC further ruled: 

The choice to exact consideration in the form of compliance with the
open source requirements of disclosure and explanation of changes... 

How on earth can disclosure and explanation of changes come before (be
a condition precedent) to the license grant? 

The CAFC opinion is utter idiocy, Rahul.

-- 
M. H. DIEPENBROCK, Respondent, v. FRANK J. LUIZ, Appellant 

Sac. No. 1782 

Supreme Court of California 

159 Cal. 716; 115 P. 743; 1911 Cal. LEXIS 373 


May 2, 1911 

PRIOR-HISTORY: APPEAL from a judgment of the Superior Court of
Sacramento County. Peter J. Shields, Judge. 

COUNSEL: J. Frank Brown, and C. E. McLaughlin, for Appellant. 

R. Platnauer, for Respondent. 

JUDGES: In Bank. Melvin, J. Sloss, J., and Lorigan, J., concurred. Shaw,
J., concurring. Henshaw, J., and Angellotti, J., concurred. 

OPINION BY: MELVIN 

OPINION 

This cause was decided by the district court of appeal of the third
appellate district, and a rehearing was granted in order that we might
further examine the authorities applicable to the lease involved in the
litigation. After careful examination of the authorities cited and of
the arguments of counsel presented in their briefs, we have adopted the
opinion of the district court of appeal, written by Mr. Justice Burnett,
which is as follows: -- 

The action, based upon a lease of agricultural lands from one R. W.
Brown to defendant, is to recover the rental which under the terms of
said lease became due on November 15, 1906. The lease was executed on
November 11, 1905, and on November 10, 1906, Brown conveyed the premises
together with 'the reversion and reversions, remainder and remainders,
rents, issues and profits thereof,' to plaintiff. 

The main controversy is over the proper construction of the following
clause in said lease: 'It is agreed by and between the parties hereto,
that the party of the first part may sell the demised premises at any
time during the said term. Whenever sold this lease shall cease and be
at an end, provided that the party of the first part shall then pay to
the party of the second part, for all improvements placed upon the
demised premises to the time of such sale, including the cost of all
ditches, built thereon by the latter and all crops then growing thereon,
the value thereof to be agreed upon by the parties hereto, and if they
do not agree the value thereof shall be fixed by two disinterested
persons selected for that purpose, by the parties hereto, and if they
fail to agree by a third person selected by them for that purpose, and a
majority of the three shall fix the value of such improvement, and the
cost of such ditches, and the value of such crops, and as so fixed shall
be paid by the party of the first part to the party of the second part.' 

It is the contention of appellant that the lease was terminated the
instant a bona fide sale was effected by the lessor, while respondent
claims that the termination was subject to the further condition of
payment of the value of the improvements. In other words, the parties
differ as to whether the clause providing for said payment constitutes a
covenant or a condition. Appellant insists that in harmony with the rule
of construction that every word is to be understood in its ordinary and
popular sense, we may adopt any of the following definitions of provided
as given by Webster, to wit: 'On condition'; 'by stipulation'; 'with the
understanding.' Substituting these various definitions for provided he
argues that 'with the understanding' harmonizes perfectly with the text.
'It creates no discord, and does not limit the meaning and effect of
that which precedes or succeeds it, much less nullify and render
meaningless, important portions of the paragraph in which it is found.
On the other hand the substitution of the definition 'upon condition'
creates inconsistency, inharmony and discord. It practically eliminates
succeeding sentences where careful provision is made for the
ascertainment and payment of the amount while its effect on the
preceding sentence 'whenever sold this lease shall cease and be at an
end' is to convert an absolute, positive and emphatic declaration into a
qualified statement, the effect of which depends upon the will of one of
the parties

Re: Copyright Misuse Doctrine in Apple v. Psystar



Thufir Hawat hawat.thu...@gmail.com wrote in message 
news:haeql.53381$ci2.43...@newsfe09.iad...

On Sun, 01 Mar 2009 09:41:17 -0500, amicus_curious wrote:


None of the above demonstrate that the file(s) are stored on Verizon
servers, the files could be hosted on Actiontek servers.


With a URL of download.Verizon.net?  Perhaps their servers could be
linked behind the scenes, but that would be rather unusual at best.  Why
would they do that in lieu of just storing a copy of the download file?



The point is that you've not demonstrated that the files are stored on a
verizon server yet proceed as if you have.

They are accessed via the Verizon webserver.  What difference would it make 
if they were somehow linked behind the scenes to some server owned by 
another company.  Do you seriously believe that is the case?  It would be 
very unusual for Verizon to have back office direct connections to 
Actiontec. 


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Re: Copyright Misuse Doctrine in Apple v. Psystar



Hyman Rosen hyro...@mail.com wrote in message 
news:khmql.51855$2o4.35...@newsfe03.iad...

amicus_curious wrote:

With a URL of download.Verizon.net?


Which contains actiontec gateway?


No.  the link from Verizon.com has that directory name which resolves to 
download.Verizon.net which is a URL owned by Verizon.  Have you been paying 
attention? 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


David Kastrup wrote:
[...]
  I think Rjack has a valid point that a court might well treat the GPL as
  a contract in such a case.
 
 Huh?  You can't be held to a contract you did not sign.

Spitting coffee all over my two monitors. Dak, dak, dak, you
#%#%$#%$#.

Verträge können schriftlich, mndl. oder durch konkludentes Verhalten (in
etwa: bestätigendes Verhalten) geschlossen werden. Die Schriftform ist
nur in wenigen Fällen (v.a. Immobilien) zwingend vorgeschrieben.
Konkludentes Verhalten ergibt sich, wenn Du z.B. eine Dienstleistung
oder eine Ware nutzt. Steht am Autoscooter gross 1 Fahrt = 1 Euro dran
und du setzt dich in einen Wagen und fährst los, zeigt dein Verhalten,
dass Du auf das Vertragsangebot des Unternehmens eingehst, damit kommt
ein Vertrag zwischen Dir und dem UN zustande, ergo hast Du zu bezahlen.
Soweit die Basics. 

http://de.mimi.hu/recht/konkludente.html

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rahul Dhesi wrote:
[...]
didn't see, how that applies to a clear written license that repeatedly
says provided that.

http://web.lexis-nexis.com/research/retrieve?_m=9d061ea7856d1e028cc0a06fdcdecfb5docnum=1_fmtstr=FULL_startdoc=1wchp=dGLzVtz-zSkAb_md5=c4b44e6c4c2abb82fad4247554a9f7fa

It is undoubtedly true, as claimed by appellant, that stipulations in a
contract are not construed as conditions precedent unless that
construction is made necessary by the terms of the contract. ( Deacon v.
Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140 Cal.
318, [73 Pac. 966].) There are also well considered cases holding that
provided does not necessarily impose a condition. In Hartung v. Witte,
59 Wis. 285, [18 N. W. 177], it is said: 'But the words, upon the
express condition, as here used, or the words if it shall so happen
or provided however and the like do not always make a condition, and
it is often a nice question to determine whether it is a condition or a
covenant and courts always construe similar clauses in a deed as
covenants rather than as conditions, if they can reasonably do so.' (2
Washburn on Real Property, 4.)

In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
'The word provided though an appropriate word to constitute a common law
condition does not invariably and of necessity do so. On the contrary,
it may give way to the intent of the party as gathered from an
examination of the whole instrument, and be taken as expressing a
limitation in trust.'

Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
R. A. 380], it is said: 'While the words provided nevertheless and
upon the following conditions are appropriate words to create a
condition, they do not of necessity create such an estate. They and
similar words, will give way when the intention of the grantor as
manifested by the whole deed, is otherwise, and they have frequently
been explained and applied as expressing simply a covenant or a
limitation in trust.'

Indeed, the decisions are uniform to the point that, while ordinarily
the word 'provided' indicates that a condition follows, as expressed in
Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], 'there is no
magic in the term, and the clause in a contract is to be construed from
the words employed and from the purpose of the parties, gathered from
the whole instrument.'

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

The law firms hired by the defendants continue in business in
beautiful, spacious office buildings a fact that may easily be
publicly observed.


Lawyers always get paid. And money is fungible. So as I thought,
this is merely wishful thinking on your part.


As part of a settlement agreement, the plaintiffs are paying the
defendants a rather handsome service fee to publish the source code
on the defendants' servers.


You would like to believe this, and you would like the rest of us
to believe this, but you have no evidence that it is true.


No defendant has ever filed a voluntary dismissal to prevent review
on the merits


Well, duh. Defendants don't get to file voluntary dismissals.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


amicus_curious wrote:

What difference would it make if they were somehow linked

 behind the scenes to some server owned by another company.

Verizon must honor the terms of the GPL only if it takes
actions permitted by the GPL but otherwise forbidden by
copyright law. I believe that the details of who owns the
storage and how the file is transmitted matter as to whether
this is the case.

 Do you seriously believe that is the case?

It is a reasonable explanation of why the SFLC dismissed its
case against Verizon, made more plausible by the actiontec
gateway part of the URL.

 It would be very unusual for Verizon to have back office
 direct connections to Actiontec.

And you know this how?
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  The CAFC opinion is utter idiocy, Rahul.
 
 No drunkenness this time? Isn't it awful how those actual judges
 just don't have the wisdom, intelligence, and perspicacity that
 you do?

As discussed by The Supreme Court of California, the term provided may
or may not indicate a condition, noting that there is no magic in the
term [provided], and the clause in a contract is to be construed from
the words employed and from the purpose of the parties, gathered from
the whole instrument. Diepenbrock v. Luiz, 115 P. 743, 744 (Cal. 1911)
(quoting Boston Safe Dep. and Trust Co. v. Thomas, 53 P. 472 (Kan. 1898)
(finding that, based on a reading of an entire provision, a clause
containing provided, that was not a condition)). 

Here's more:

1. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936 

--- 
This is not legal advice... 

As an attorney spending a great deal of time on software related IP 
licensing and litigation matters, I find the CAFC decision in the 
Jacobsen case to be troubling. While I am sympathetic to the court's 
apparent desire to validate the concept of open source licensing and 
its alternative forms of consideration, I do not believe that the 
court's ruling justifies a euphoric response by the open source 
community. 

First, the CAFC's decision is a clear repudiation of the bare 
license theory long espoused by Mr. Moglen and his followers. The 
CAFC's decision reflects the fact that open source licenses, like any 
other form of software licenses, are contracts. I agree with this 
aspect of the decision as it is well supported by precedent at all 
levels. Neither Mr. Moglen, nor any of his followers have cited legal 
precedent in support of the bare license theory. The CAFC's decision 
should serve as clear notice that the bare license theory is nothing 
more than Moglen's wishful thinking. The necessary implication of this 
finding by the court is that open source licenses must be interpreted 
in the context of applicable state law, and to an extent, the common 
law of the Federal Circuit in which the open source agreement is 
interpreted. (This is directly in conflict with the CAFC's willful 
failure to follow state law and Ninth Circuit precedent regarding the 
interpretation of restrictions as conditions precedent). 

Second, the CAFC's opinion creates a great deal of uncertainty for 
software licensing (whether proprietary or open source). Let's take 
the GPLv3 as an example. As most peoople are aware, there are a 
variety of disagreements over exactly what is required of a licensee 
to comply with various provisions of the GPL. Section 2 of the GPL 
appears to condition the rights granted under the license on the 
licensee's compliance with the conditions stated in the license. 
Under the CAFC's decision in Jacobsen, it stands to reason that a 
licensee that fails to fully satisfy the conditions stated in the 
GPLv3 would infringe the licensor's copyrights rather than merely 
breaching the license. Thus, even if the licensee unintentionally 
violated the terms of the GPLv3 because the meaning of the terms are 
not clear, the licensee would be liabile for infringement. 

Why does this matter? State courts, the federal circuit courts of 
appeal and the US Supreme Court have all uniformly and routinely 
interpreted license restrictions as covenants rather than conditions 
precedent. In other words, the courts presume that the restrictions 
are covenants rather than conditions precedent unless the agreement 
clearly defines the restrictions as conditions. the CAFC's decision 
wholly ignores this long held principle of law. 

Most licenses, open source or proprietary, contain provisions whose 
meanings are open to viable debate. In the past, parties to a 
software license have largely understood that a licensee that breaches 
a license agreement's terms is liable to the licensor for damages 
decided under contract law. Proprietary licenses typically include 
provisions which define or otherwise limit the scope of damages that 
may be recovered in the event of a breach. On the other hand, a party 
that is liable for infringement of a copyright is subject to 
injunctive relief and damages equal to the owner's actual damages 
(plus the infringer's profits not covered by the owner's actual 
damages) OR statutory damages of up to $150,000 per incidence of 
infringement. Any contractually agreed limitations on damages would 
be irrelevant in the infringement setting. 

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a condition is an infringement rather than a breach. Thus, any 
licensee that violates the conditions of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state

Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:

1. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936


He doesn't like the CAFC decision either. Too bad for him.
He doesn't like that violating the conditions of a license
is copyright infringement. Too bad for him.

 All open source licenses will need to be modified if the
 decision stands 

Why? Because he doesn't like them? Too bad for him. The GPL
works very well with this ruling, so it certainly doesn't
need to be changed. Perhaps he means those other licenses
that privilege the ease of developers over the freedom of
users.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  1. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
 
 He doesn't like the CAFC decision either. Too bad for him.
 He doesn't like that violating the conditions of a license
 is copyright infringement. Too bad for him.
 
   All open source licenses will need to be modified if the
   decision stands 
 
 Why? Because he doesn't like them? Too bad for him. The GPL
 works very well with this ruling, so it certainly doesn't
 need to be changed. 

The GPL's purported automatic termination clause makes it abundantly
clear that the GPL obligations just can't be conditions precedent.
Failure to perform real conditions precedent means that no rights were
granted and hence there is nothing to terminate.

Stop being utter idiot, Hyman.

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:
[...]
 It is a reasonable explanation of why the SFLC dismissed its
 case against Verizon, made more plausible by the actiontec
 gateway part of the URL.

Man oh man. That gateway word is just the name of the box, idiot.

http://support.actiontec.com/doc_files/Datasheet_MI424WR_Rev.E_Verizon_FiOS_Router.pdf

Verizon continues its string of impressive technological advances with
the introduction of its next generation FiOS Router. The First Smart
Home Gateway ...

http://www.actiontec.com/support/product_details.php?pid=188typ=all

All of the Ethernet ports on my Gateway or Router are in use; can I
still add devices? How?

Is my Actiontec DSL Gateway or Cable/DSL Router a Firewall?

Will my Xbox work with the Actiontec Gateway or Router?

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-02 Thread David Kastrup

Alexander Terekhov terek...@web.de writes:

 David Kastrup wrote:
 [...]
  I think Rjack has a valid point that a court might well treat the GPL as
  a contract in such a case.
 
 Huh?  You can't be held to a contract you did not sign.

 Spitting coffee all over my two monitors. Dak, dak, dak, you
 #%#%$#%$#.

 Verträge können schriftlich, mndl. oder durch konkludentes Verhalten
 (in etwa: bestätigendes Verhalten) geschlossen werden.

Konkludentes Verhalten certainly can't be relevant when nothing in
your behavior indicates a willingness to enter into a contractual
relation.

For example, if you pay with a credit card and your payment bounces
later, then contractual obligations according to AGB can be demanded
later because konkludentes Verhalten definitely signaled your
agreement to the implied contractual obligations put forward by the
shop's Allgemeine Geschäftsbedingungen.  There are close limits to
what AGB can entail: they must not contain any undue surprises but
remain within normal expectations.  Lots of court decisions about what
constitutes proper AGB, the main base for such contracts.

Anyway, the bounced payment is always a cause for civil action, and
sometimes for fraud (if you knew that the payment would bounce or
doctored the credit card).

In contrast, if you just shoplift without paying, konkludentes
Verhalten can't be stated.  You can be sued for default damages and
criminal charges then.

In contrast, the GPL does not meet the preconditions for AGB, contracts
that you can enter into without actually perusing or signing them.

So in short: you have no clue.  Again.  Hardly surprising.

-- 
David Kastrup
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:

That gateway word is just the name of the box


What do you mean? If you're saying that Verizon and
Actiontec are the same company, then we're done, since
Actiontec complies with the GPL.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


David Kastrup wrote:
[...]
 In contrast, the GPL does not meet the preconditions for AGB, ...

Go tell it to judges in Munich and Frankfurt.

http://www.jbb.de/judgment_dc_munich_gpl.pdf
http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
http://www.jbb.de/urteil_lg_muenchen_gpl.pdf
http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

 
 So in short: you have no clue.  Again.  Hardly surprising.

STOP BEING UTTER MORON, dear GNUtian dak.

http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf

The relevant part is (see page 11)

Die Lizenzbedingungen des GPL sind als allgemeine Geschäftsbedingungen
anzusehen, die einer Prüfung nach 305 ff. BGB unterfallen. Da die
Lizenzbedingungen des GPL ohne Weiteres im Internet abrufbar sind,
bestehen keine Bedenken, dass diese in das Vertragsverhältnis zwischen
den Urhebern und der Beklagten einbezogen wurden (§ 305 Abs. 2 Ziff. 2
BGB).

http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf

The conditions [terms] of the license granted under the GPL must be
regarded as standard terms and conditions that are subject to Sections
305 et seq. of the German Civil Code (BGB). Since the conditions [terms]
of the license granted by the GPL are easily available on the Internet, 
they were without a doubt incorporated into the contractual relationship
between the authors and Defendant (Section 305, Subsection 2, No.2 of
the German Civil Code (BGB)).

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  That gateway word is just the name of the box
 
 What do you mean? 

I mean that your silly theory of behind the scene linkage and
retransmission is fantastically implausible.

Would you make your silly claims if Verizon would call the download
directory actiontec box? Face it: gateway is how they call the box.

regards,
alexander.

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Re: Copyright Misuse Doctrine in Apple v. Psystar



Hyman Rosen hyro...@mail.com wrote in message 
news:jxsql.24840$zp.11...@newsfe21.iad...

amicus_curious wrote:

What difference would it make if they were somehow linked

 behind the scenes to some server owned by another company.

Verizon must honor the terms of the GPL only if it takes
actions permitted by the GPL but otherwise forbidden by
copyright law. I believe that the details of who owns the
storage and how the file is transmitted matter as to whether
this is the case.

So I can violate the copyright laws as I please if I only take care to store 
all the illegal copies in someone else's warehouse?  You are the height of 
sillyness!



 Do you seriously believe that is the case?

It is a reasonable explanation of why the SFLC dismissed its
case against Verizon, made more plausible by the actiontec
gateway part of the URL.

It is extremely unlikely that this is the case.  The SFLC dismissed its case 
because it knew it was a losing proposition and that they would have to pay 
for Verizon's legal fees.  They didn't want to incur any more expense, so 
they surrendered.



 It would be very unusual for Verizon to have back office
 direct connections to Actiontec.

And you know this how?


Because that is part of what I do for a living and I am very familiar with 
how corporations structure backend storage.  What on earth would qualify you 
to come up with such a half-wit theory as you have done? 


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Re: Copyright Misuse Doctrine in Apple v. Psystar



Hyman Rosen hyro...@mail.com wrote in message 
news:sssql.24839$zp@newsfe21.iad...

amicus_curious wrote:
No.  the link from Verizon.com has that directory name which resolves to 
download.Verizon.net which is a URL owned by Verizon.  Have you been 
paying attention?


Just because the file is served by the Verizon webserver does not mean
that it is stored there. You cannot know what a webserver is doing from
the outside because a webserver is a general purpose program that may be
set up to respond in arbitrary ways depending on the rqeuest.

The question then is whether that actiontec gateway URL, when activated
by a user seeking a copy of the firmware, leads to an action that would be
forbidden to Verizon under normal copyright, thus requiring that Verizon
have the GPL's permission to carry out legally. The answer to that 
question

can only come by finding out from Verizon what they are doing. The people
in the best position to find that out were the SFLC, because of the legal
action they initiated. They appear to have decided that Verizon's actions
did not require permission from the GPL, and they therefore dismissed 
their

case against Verizon, being satisfied instead that the company which makes
Verizon's routers is now properly making the GPLed sources available.


Well, the same sort of thing is in play with the Cisco case.  If/when the 
SFLC runs for cover again, will you take the same silly position? 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Alexander Terekhov wrote:

The CAFC opinion is utter idiocy, Rahul.


No drunkenness this time? Isn't it awful how those actual judges 
just don't have the wisdom, intelligence, and perspicacity that 
you do?


You have to be either drunk or stupid to believe the CAFC was
correct concerning conditions.

The Restatement (Second) of Contracts Article 224 states:
Condition Defined:
A condition is an event, not certain to occur, which must occur,
unless its non-occurrence is excused, before performance under a
contract becomes due.

Obviously an event that depends on performance of a contract
cannot occur *before* performance of the contract becomes due. This
result is called an impossible condition in contract construction
and is strictly construed *against* the drafter.


The ruling of the CAFC reminds me of this limerick ridiculing the
theory of special relativity:

There was a young lady named Bright,
Whose speed was far faster than light.
She went out one day,
In a relative way
And returned the previous night!

Sincerely,
Rjack :)

-Reginald Buller
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:

Would you make your silly claims if Verizon would call the download
directory actiontec box? Face it: gateway is how they call the box.


The label on the download URL says Router Model MI424WR FiOS Router.
Why doesn't the label on the box show up as the label on the URL?

But, wait, there's more. Let's take a look at what people who
get an Actiontec router see in their manual:
http://support.actiontec.com/doc_files/MI424WR_Rev._E_User_Manual_20.8.0_v3.pdf
Go to page one and see the prominent use of Verizon on the page.
Then go to page 204, and see this:
C.4 GPL (General Public License)
This product includes software code developed by third
parties, including software code subject to the enclosed
GNU General Public License (GPL) or GNU Lesser General
Public License (LGPL). The GPL Code and LGPL Code used in
this product are distributed WITHOUT ANY WARRANTY and are
subject to the copyrights of the authors, and to the terms
of the applicable licenses included in the download. For
details, see the GPL Code and LGPL Code for this product
and the terms of the GPL and the LGPL, which are available
on the enclosed product disk and can be accessed by
inserting the disk into your CD-ROM drive and opening the
“GPL.exe” file.

So, contrary to the claims that Verizon doesn't know that the GPL
exists, we see that a Verizon-branded product manual talks about
the GPL and that GPL notification (and perhaps source code too)
is shipped with the routers. So the remaining possible GPL violation
would be for someone who doesn't already have an Actiontec router but
downloads the firmware anyway, and this from a page labeled
Downloading Updated Verizon FiOS Router Firmware.

Of course the SFLC dismissed the case. Verizon and Actiontec are in
compliance with the GPL.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


amicus_curious wrote:


Because that is part of what I do for a living and I am very familiar 
with how corporations structure backend storage. What on earth would

qualify you to come up with such a half-wit theory as you have done?


Hymen is a fully qualified half-wit -- it's his occupational specialty.

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Rjack wrote:
The law firms hired by the defendants continue in business in 
beautiful, spacious office buildings a fact that may easily be

 publicly observed.


Lawyers always get paid. And money is fungible. So as I thought,
 this is merely wishful thinking on your part.

As part of a settlement agreement, the plaintiffs are paying 
the defendants a rather handsome service fee to publish the 
source code on the defendants' servers.


You would like to believe this, and you would like the rest of us
 to believe this, but you have no evidence that it is true.


It's written up in the settlements -- the same settlements you seem
to be privy to.

In each and every case where the SFLC filed suit the source code is
hosted on the defendant's server (except Verizon who told the SFLC
to kiss their royal purple ass). It is certainly reasonable to
believe, in light of no registered copyrights for the plaintiffs
standing, that the losing plaintiffs agreed to lucrative contracts
for the defendants to host the plaintiffs' code in addition to
paying defendants' legal costs.



No defendant has ever filed a voluntary dismissal to prevent 
review on the merits


Well, duh. Defendants don't get to file voluntary dismissals.


Well, duh. Thanks for emphasizing my point.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

except Verizon


Here is the manual for the Actiontec router:
http://www.actiontec.com/support_cms/doc_files/MI424WR_Rev._E_User_Manual_20.8.0_v3.pdf
The manual is entitled Verizon FiOS Router and features
the Verizon check mark and long z logo. The very last page
contains a section titled C.4 GPL (General Public License).

There is no except Verizon.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Rjack wrote:

except Verizon


Here is the manual for the Actiontec router: 
http://www.actiontec.com/support_cms/doc_files/MI424WR_Rev._E_User_Manual_20.8.0_v3.pdf




The manual is entitled Verizon FiOS Router and features the 
Verizon check mark and long z logo. The very last page contains a

 section titled C.4 GPL (General Public License).

There is no except Verizon.


WTF are you whining about Hymen? Since when is a User Manual on an
A-c-t-i-o-n-t-e-c site source code from V-e-r-i-z-o-n?

Perhaps you should take a break and soothe your fever'd brow.

Sincerely,
Rjack :)


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

Since when is a User Manual on an
A-c-t-i-o-n-t-e-c site source code from V-e-r-i-z-o-n?


When the front page says V-e-r-i-z-o-n and has V-e-r-i-z-o-n's
corporate logo. It's a PDF of the user manual that ships with
the router. The manual also makes clear that the router ships
with a disk that contains GPL information and possibly the
source code as well.
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Re: Copyright Misuse Doctrine in Apple v. Psystar



Rjack u...@example.net wrote in message 
news:wbudnvfln-ndrzhunz2dnuvz_r-wn...@giganews.com...

amicus_curious wrote:


Because that is part of what I do for a living and I am very familiar 
with how corporations structure backend storage. What on earth would

qualify you to come up with such a half-wit theory as you have done?


Hymen is a fully qualified half-wit -- it's his occupational specialty.

He seems like the black knight in the old Monty Python skit where, with no 
arms or legs left, he is still combative. 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Rjack wrote:
Since when is a User Manual on an A-c-t-i-o-n-t-e-c site 
source code from V-e-r-i-z-o-n?


When the front page says V-e-r-i-z-o-n and has V-e-r-i-z-o-n's 
corporate logo. It's a PDF of the user manual that ships with the

 router. The manual also makes clear that the router ships with a
 disk that contains GPL information and possibly the source code 
as well.


The Verizon headquarters has V-e-r-i-z-o-n on the building. Does
that make all that brick and mortor source code too?

Sincerely,
Rjack :)

*** GNUtians never lose. They just move the goalposts ***
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-02 Thread David Kastrup

amicus_curious a...@sti.net writes:

 Rjack u...@example.net wrote in message
 news:wbudnvfln-ndrzhunz2dnuvz_r-wn...@giganews.com...
 amicus_curious wrote:

 Because that is part of what I do for a living and I am very
 familiar with how corporations structure backend storage. What on
 earth would
 qualify you to come up with such a half-wit theory as you have done?

 Hymen is a fully qualified half-wit -- it's his occupational specialty.

 He seems like the black knight in the old Monty Python skit where,
 with no arms or legs left, he is still combative. 

Correction: he seems like that to you, since even after you imagine
having proved that he can have no arms or legs, he still kicks your ass.

-- 
David Kastrup
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

The Verizon headquarters has V-e-r-i-z-o-n on the building. Does
that make all that brick and mortor source code too?


A Verizon-branded manual for a Verizon-branded router has a section
on the GPL and the router comes with a GPL disk. This is no longer
an issue of having to suppose things based on URL contents. It's all
there in red and white. Of course the GPL naysayers will try to find
ways to deny the evidence, but you can feel the flop sweat building.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


David Kastrup wrote:

amicus_curious a...@sti.net writes:


Rjack u...@example.net wrote in message
news:wbudnvfln-ndrzhunz2dnuvz_r-wn...@giganews.com...

amicus_curious wrote:

Because that is part of what I do for a living and I am very
familiar with how corporations structure backend storage. What on
earth would
qualify you to come up with such a half-wit theory as you have done?

Hymen is a fully qualified half-wit -- it's his occupational specialty.


He seems like the black knight in the old Monty Python skit where,
with no arms or legs left, he is still combative. 


Correction: he seems like that to you, since even after you imagine
having proved that he can have no arms or legs, he still kicks your ass.



Yeah. . . with his tongue.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Rjack wrote:
The Verizon headquarters has V-e-r-i-z-o-n on the building. 
Does that make all that brick and mortor source code too?


A Verizon-branded manual for a Verizon-branded router has a 
section on the GPL and the router comes with a GPL disk. This is 
no longer an issue of having to suppose things based on URL 
contents. It's all there in red and white. Of course the GPL 
naysayers will try to find ways to deny the evidence, but you can

 feel the flop sweat building.


Stuff the rhetoric and just show the us code that V-e-r-i-z-o-n is
d-i-s-t-r-i-b-u-t-i-n-g (other than in firmware in the routers).

If we do find Verizon distributing some GPL source code (which we
haven't) it would be due to the SFLC paying Verizon to host the code
on their servers because of the settlement agreement that
accompanied the voluntary dismissal WITH PREJUDICE by the SFLC.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

Stuff the rhetoric and just show the us code that V-e-r-i-z-o-n is
d-i-s-t-r-i-b-u-t-i-n-g (other than in firmware in the routers).


http://support.actiontec.com/doc_files/MI424WR_Rev._E_User_Manual_20.8.0_v3.pdf
For details, see the GPL Code and LGPL Code for this product and
the terms of the GPL and the LGPL, which are available on the
enclosed product disk and can be accessed by inserting the disk
into your CD-ROM drive and opening the “GPL.exe” file.

You get GPLed source code shipped to you on a disk when you
order FiOS from Verizon. It says so right there, in the red
and white pamphlet with Verizon's name and logo on the cover.


SFLC paying Verizon


Spin and twist, twist and spin. And you claimed that actiontec
gateway was a stretch. Sad. But entirely expected. You have no
evidence of this, of course.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Hyman Rosen hyro...@mail.com schrieb im Newsbeitrag 
news:h8yql.49364$az3.44...@newsfe01.iad...

Rjack wrote:

The Verizon headquarters has V-e-r-i-z-o-n on the building. Does
that make all that brick and mortor source code too?


A Verizon-branded manual for a Verizon-branded router has a section
on the GPL and the router comes with a GPL disk.


Does that GPL disk contain source code corresponding to

http://www2.verizon.net/micro/actiontec/actiontec.asp

including all future Verizon firmware upgrades as well?

WOW. Magic disk.

http://support.actiontec.com/doc_files/Current_Firmware_Versions.pdf

If your Actiontec DSL Modem, Gateway or Router has a Verizon
firmware installed, you MUST contact Verizon to obtain the
firmware upgrade, and for assistance installing it.

The Verizon firmware for the MI424WR is available at this web site.

http://www2.verizon.net/micro/actiontec/actiontec.asp;

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.) 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:
 Does that GPL disk contain source code corresponding to
 http://www2.verizon.net/micro/actiontec/actiontec.asp
 including all future Verizon firmware upgrades as well?

I don't have the disk, but I imagine that it comes with
a website address from which one obtains future versions
of the source.

 The Verizon firmware for the MI424WR is available at this web site.
 http://www2.verizon.net/micro/actiontec/actiontec.asp;

That page contains link to the download URL, which is
http://download.verizon.net/webdownload/firmware/upgrades/actiontec%20gateway/4.0.16.1.56.0.10.7-MI424WR.rmt
Actiontec Gateway. Additionally, this is a page for
firmware upgrades; Verizon isn't offering this software
to the public at large. Anyone who has the router already
has the disk and manual.

You have been one to say that Verzion is unaware of, ignores
or willfully violates the GPL, quoting the article where a
Verizon executive was unable to answer a GPL-related question.

Now we see a Verzion-branded router with a product manual
festooned with Verizon name and logo which has a section on
the GPL and comes with a GPL disk. What say you now?
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Hyman Rosen hyro...@mail.com schrieb im Newsbeitrag 
news:nkzql.20936$ff1.19...@newsfe20.iad...

[...]

What say you now?


Verzion is unaware of, ignores or willfully violates the GPL by distributing 
GPL'd binary code from


http://www2.verizon.net/micro/actiontec/actiontec.asp

but failing to ensure that downloaders can easily find the source code 
(offer) at the time they download the binary.


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.)

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Alexander Terekhov wrote:

Now we see a Verzion-branded router with a product manual 
festooned with Verizon name and logo which has a section on the

GPL and comes with a GPL disk. What say you now?


I've already answered you Hyman:

If we do find Verizon distributing some GPL source code (which we
haven't) it would be due to the SFLC paying Verizon to host the code
on their servers because of the settlement agreement that
accompanied the voluntary dismissal WITH PREJUDICE by the SFLC.


If you have found Verizon distributing GPL'd code then this provides
concrete evidence to confirm my claim. The SFLC is spending even for
publicly solicited funds to further their propaganda efforts by
paying Verizon to distribute the code.

Sincerely,
Rjack :)


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:
Verzion is unaware of, ignores or willfully violates the GPL by 
distributing GPL'd binary code from

http://www2.verizon.net/micro/actiontec/actiontec.asp
but failing to ensure that downloaders can easily find the source code 
(offer) at the time they download the binary.


Verzion offers the software through an actiontec gateway link
on a page labeled as being for firmware upgrades to people who
already have their FiOS router which came with a Verizon-branded
manual and a disk containing GPL information and source. The
manufacturer of the router makes the soources available on a web
page festooned with the symbols of Linux and Copyleft.

If this is a failure to honor the GPL, it is in the most minor way
imaginable, and naturally the SFLC was satisfied with the results
of its settlement discussions, and dismissed its case. The outcome
is that anyone who receives the firmware is able to run it if they
have the router, they may read the source code, they may modify it,
and they may share it, exactly as the GPL was written to insure.

Even your last breath of hope is denied to you. There is not a single
company prepared to defy the requirements of the GPL.
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

If we do find Verizon distributing some GPL source code (which we
haven't)


Of course we have - the Verizon-branded manual says so:

http://support.actiontec.com/doc_files/MI424WR_Rev._E_User_Manual_20.8.0_v3.pdf
For details, see the GPL Code and LGPL Code for this product and
the terms of the GPL and the LGPL, which are available on the
enclosed product disk and can be accessed by inserting the disk
into your CD-ROM drive and opening the “GPL.exe” file.


it would be due to the SFLC paying Verizon


Of course you have no evidence that this is true, because it is false.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

David Kastrup d...@gnu.org schrieb im Newsbeitrag 
news:85vdqrmxww@lola.goethe.zz...

amicus_curious a...@sti.net writes:


Rjack u...@example.net wrote in message
news:wbudnvfln-ndrzhunz2dnuvz_r-wn...@giganews.com...

amicus_curious wrote:


Because that is part of what I do for a living and I am very
familiar with how corporations structure backend storage. What on
earth would
qualify you to come up with such a half-wit theory as you have done?


Hymen is a fully qualified half-wit -- it's his occupational specialty.


He seems like the black knight in the old Monty Python skit where,
with no arms or legs left, he is still combative.


Correction: he seems like that to you, since even after you imagine
having proved that he can have no arms or legs, he still kicks your ass.


Said GNUtian Huh? You can't be held to a contract you did not sign dak.

LOL.

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.) 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:
Hyman Rosen hyro...@mail.com schrieb im Newsbeitrag 
news:nkzql.20936$ff1.19...@newsfe20.iad... [...]

What say you now?


Verzion is unaware of, ignores or willfully violates the GPL by 
distributing GPL'd binary code from


http://www2.verizon.net/micro/actiontec/actiontec.asp

but failing to ensure that downloaders can easily find the source
 code (offer) at the time they download the binary.



The Verizon complaint states:

***

11. Upon information and belief, Verizon distributes to its
customers the Actiontec MI424WR wireless router (“Infringing
Product”), which contains embedded executable software (“Firmware”).
Defendant also provides the Firmware corresponding to the Infringing
Product for download via its website,
http://www2.verizon.net/micro/actiontec/actiontec.asp.

***

There is *still* no source code CD or offer to provide source code
available on the firmware update site:

http://www2.verizon.net/micro/actiontec/actiontec.asp

The previously sold router and CD stuff from Hymen was a Red
Herring attempt to divert attention from Verizon's firmware update
site. (If the router shipped with the disputed code there would be
no need for a firmware update site.)

We can conclude with confidence that Verizon told the SFLC to
kiss their royal purple ass.

What say you now Hymen?

Sincerely,
Rjack :)









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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

Rjack u...@example.net writes:

Here's a nice link from Australia (which follows English 
common law same as in the US) that explains the difference:


http://law.anu.edu.au/COLIN/Lectures/frust.htm

...

Here's a nice citation from the Second Circuit that 
demonstrates that a termination of the grant of rights in a 
copyright license is considered as a rescission. I'd forget 
Australia -- it's not in the Second Circuit where its decisions

 the precedent...


I'm beginning to see how it could happen that you could quote so 
many cases, and still get fundamental concepts (e.g. standing vs 
subject matter jurisdiction, or termination of a license or 
contract vs rescissoin of a contract) so wrong.


I see you are still confused about contract termination. Contract
termination is a general concept. In general a contract may be
*terminated* by reasons of *rescission*, *breach*, or *impossibility
of performance*.



The quoted text above indicates the problem. You aren't using any
 knowledge of the common law of contracts, derived from England 
and further developed in the US by state courts.


Instead, you are taking isolated Circuit court cases and treating
 them as if they define state contract law terms.  That's not 
going to give you any useful results.  The Circuits don't define 
state contract law, they merely apply it. And in doing so, they 
don't define contract law terms, they merely apply them.


Essentially all of the contract law in the US comes intact from 
England, with some further development by the state courts in the

 US. Not the federal courts, but the state courts.

This is why you are gravely mistaken when you essentially argue 
that a common law term is better understood from a Second Circuit
 opinion than from a law summary from Australian contract law 
professor.

I never argued that.

The GPL suits are filed in the Second Federal Circuit in New York
State where the district courts reside. The federal district courts
will apply New York state common law as they feel the New York state
courts interpret that common law. It is how the federal courts
interpret the *state court decisions* that matters. They are guided
in this matter by the Second Circuit Court of Appeals.

What you can do, however, is look for a Second Circuit case that 
includes a general discussion of the topic and provides multiple 
citations to state law. And then you can quote that. But I 
haven't seen you do that.


Here's my citation:

Finally, James argues that even if the nonpayment of royalties and
the removal of James's authorship credit amount to no more than
breaches of covenants, these breaches terminated the license. . .
One party's breach does not automatically cause [rescission] of a
bilateral contract.) (emphasis omitted). Similarly, although James
sometimes characterizes the licensing agreement as abandoned,
abandonment of a contract can be accomplished only through mutual
assent of the parties, as demonstrated by positive and unequivocal
conduct inconsistent with an intent to be bound. See  Armour  Co.
v. Celic , 294 F.2d 432, 435-36 (2d Cir. 1961). 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.; GRAHAM v JAMES 144 F.3d 229 (2d Cir. 1998).

Had you actually read the citation you have seen, 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.


And the reason I picked that particular Australian link was not 
because it's from Australia, but because it describes the 
difference between termination and rescission very well. Those 
who want to learn will learn from that. Those who don't may claim

 that the common law of contracts comes from the Second Circuit.


Rahul if you wish study American contract law go the The American
Law Institutes' *Restatement of Contracts* series or look to
*Williston on Contracts* or *Corbin on Contracts*. Stay out of
Australia.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-01 Thread amicus_curious



Thufir Hawat hawat.thu...@gmail.com wrote in message 
news:uxmql.16489$l71.15...@newsfe23.iad...

On Fri, 27 Feb 2009 09:05:35 -0500, amicus_curious wrote:


Thufir Hawat hawat.thu...@gmail.com wrote in message
news:1blpl.46156$ci2.13...@newsfe09.iad...

On Thu, 26 Feb 2009 15:26:56 -0500, amicus_curious wrote:


Does the binary file which is being distributed reside on the verizon
server?  If so, then Verizon would be required to make the source
available upon request from a customer.  If the binary isn't on a
Verizon server then Verizon has no obligations is the argument.

The fact that there's a link on verizon.com which causes this binary to
download doesn't prove that the binary file is on a Verizon server.


Well, the link resolves to downloads.verizon.net and that is most
certainly a Verizon site.  Verizon does not need to make any source
available at least in regard to the BusyBox library, and indeed does not
do so, since the case filed by the SFLC complaining of that practice was
dismissed with predjudice.

Try the link yourself.




None of the above demonstrate that the file(s) are stored on Verizon
servers, the files could be hosted on Actiontek servers.

With a URL of download.Verizon.net?  Perhaps their servers could be linked 
behind the scenes, but that would be rather unusual at best.  Why would they 
do that in lieu of just storing a copy of the download file?  That would be 
a lot simpler and cheaper and doubtless the way that they are doing it. 
They are not just hosting Actiontec binaries, they have many other things at 
the same location.  You guys are jusrt running around Robin Hood's barn in 
an attempt to show a meaningless and contrived situation.  Verizon, via its 
website, is actively promoting the distribution of Actiontec binary programs 
created using GPL'd source.  That is a fact and that is all that is needed 
to show that they are doing so without regard to the rest of the GPL terms 
and conditions.  They don't have to observe them, they won their case by 
doing nothing. 


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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rjack u...@example.net writes:

Here's my citation:

...abandonment of a contract can be accomplished only through mutual
assent of the parties, as demonstrated by positive and unequivocal
conduct inconsistent with an intent to be bound
[ no public link ]

That citation will not help you.

You are between a rock and a hard place here, and not all the law in the
Second Circuit will save you.

If you argue that there is a contract and this contract continues to be
in effect, then the contract by its own terms causes permission to copy
to automatically terminate as provided by the contract.  Any copying
beyond that point is copyright infringement -- the GPL itself says so.
So the defendant is SOL if he continues to copy.

You other alternative if so argue that there is a contract and it's
rescinded or abandoned.  But then as soon as the contract is rescinded
or abandoned, there is no longer any permission to copy.  Any copying
beyond that point is copyright infringement. The defendant is SOL again.

I think the reason for your confusion is that you took the idea
termination of the right to copy, provided for in the GPL, and decided
that that must mean rescission of a contract. At that point you went off
on a wild tangent quoting irrelevant cases.

If any of your arguments were viable, we would have seen one or more
defendants make those arguments.
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

Rjack u...@example.net writes:


Here's my citation:


...abandonment of a contract can be accomplished only through 
mutual assent of the parties, as demonstrated by positive and 
unequivocal conduct inconsistent with an intent to be bound 

[ no public link ]

That citation will not help you.

You are between a rock and a hard place here, and not all the law
 in the Second Circuit will save you.

If you argue that there is a contract and this contract continues
 to be in effect, then the contract by its own terms causes 
permission to copy to automatically terminate as provided by the 
contract.


If you argue that a frog *assumes* he has wings then he probably
won't bump his ass . . .

An automatic termination clause in a contract will *not* be
enforced in the Second Circuit. The End! Fini! Its over!
The Court has so ruled -- don't complain to me. Complain to the
Second Circuit.
http://www.ca2.uscourts.gov/

Any copying beyond that point is copyright infringement -- the 
GPL itself says so.


The court will ignore what the GPL says and instead rely on what The
Copyright Act of 1976 (As Amended) says in light of prevailing
federal and state law.


So the defendant is SOL if he continues to copy.

You other alternative if so argue that there is a contract and 
it's rescinded or abandoned.  But then as soon as the contract is
 rescinded or abandoned, there is no longer any permission to 
copy.


I am arguing there is *NO* automatic rescission.

Any copying beyond that point is copyright infringement. The 
defendant is SOL again.


I think the reason for your confusion is that you took the idea 
termination of the right to copy, provided for in the GPL, and 
decided that that must mean rescission of a contract. At that 
point you went off on a wild tangent quoting irrelevant cases.


I think you're confusing conditions qualifying performance of a
contract with rescission of a contract but I can't be sure.



If any of your arguments were viable, we would have seen one or 
more defendants make those arguments.


That's a joke isn't it? :) :) :) :)

The SFLC files a *voluntary dismissal* before a defendant can ever
file Motion to Dismiss.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rjack u...@example.net writes:

I think you're confusing conditions qualifying performance of a
contract with rescission of a contract but I can't be sure.

You can be sure.  I'm not, you are. 

You are ignoring the plain language of the GPL where is says provided
that several times, and will automatically terminate at least once.

If you really wanted to provide useful citations, you would find some
cases in which repeated uses of such phrases were held not to constitute
conditions qualifying performance of a contract.
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rahul Dhesi wrote:

Rjack u...@example.net writes:

I think you're confusing conditions qualifying performance of a
contract with rescission of a contract but I can't be sure.

You can be sure. I'm not, you are.

You are ignoring the plain language of the GPL where is says
provided that several times, and will automatically terminate

at least once.

If you really wanted to provide useful citations, you would find
some cases in which repeated uses of such phrases were held not
to constitute conditions qualifying performance of a contract.

I bet you would like that Rahul. Unfortunately, if you wish to
refute my cited authority of Graham v James you'll have to do it on
your own dime. The case *clearly* refutes automatic termination
due to breach so either you haven't read it or are incapable of
understanding it. Alexander Terekhov also directed you to the same
case. TRY READING THE CASE

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/2nd/969224.html

So far all I've seen is your pointing to the language of the GPL and
repeatedly claiming automatic termination in a manner similar to
RMS pointing to the GPL and claiming a license is not a contract.
If you are unable to provide legal citations supporting your
implausible legal claims, no else will try it for. You may be over
your head in this group. Try an easier subject.

Sincerely,
Rjack :)

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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rjack u...@example.net writes:

Unfortunately, if you wish to refute my cited authority of Graham v
James you'll have to do it on your own dime. The case *clearly* refutes
automatic termination due to breach so either you haven't read it or
are incapable of understanding it. Alexander Terekhov also directed you
to the same case. TRY READING THE CASE

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/2nd/969224.html

The opinion that you so triumphantly cite states: Graham and James
orally agreed to the licensing agreement and did not clearly delineate
its conditions and covenants.

A case about an unclear oral agreement -- that's all you can come up
with?  After all these repeated citations, you couldn't find even one
case in which clear written conditions language was held to not create
conditions?

Not even one case?

The CAFC was well aware of this case and I will go with the CAFC's
analysis over yours.

The real moral of the case that you cite is a different one:

  An oral agreement isn't worth the paper it's written on.  
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-01 Thread Thufir Hawat

On Sun, 01 Mar 2009 09:41:17 -0500, amicus_curious wrote:

 None of the above demonstrate that the file(s) are stored on Verizon
 servers, the files could be hosted on Actiontek servers.

 With a URL of download.Verizon.net?  Perhaps their servers could be
 linked behind the scenes, but that would be rather unusual at best.  Why
 would they do that in lieu of just storing a copy of the download file?


The point is that you've not demonstrated that the files are stored on a 
verizon server yet proceed as if you have.



-Thufir
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-01 Thread Thufir Hawat

On Sun, 01 Mar 2009 10:55:35 -0500, Rjack wrote:

 Any copying beyond that point is copyright infringement -- the GPL
 itself says so.
 
 The court will ignore what the GPL says and instead rely on what The
 Copyright Act of 1976 (As Amended) says in light of prevailing federal
 and state law.


which imposes steep penalties per infraction.  To avoid those steep 
penalties a settlement will be agreed to.  The settlement?  Follow the 
GPL.


-Thufir
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rahul Dhesi wrote:

Rjack u...@example.net writes:

Unfortunately, if you wish to refute my cited authority of
Graham v James you'll have to do it on your own dime. The case
*clearly* refutes automatic termination due to breach so
either you haven't read it or are incapable of understanding
it. Alexander Terekhov also directed you to the same case. TRY

READING THE CASE

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/2nd/969224.html

The opinion that you so triumphantly cite states: Graham and
James orally agreed to the licensing agreement and did not
clearly delineate its conditions and covenants.

A case about an unclear oral agreement -- that's all you can come
up with?

But the existence of a license was essentially uncontested in this
case. James affirmatively alleged in his answer and counterclaim (in
support of his breach of contract action) that [o]n or about May
1991, defendant orally agreed to grant plaintiff the right to use
his computer program on CD-ROM disks in exchange for a fee of $1,000
for each CD-ROM version issued and a $1.00 fee for each copy of such
version sold by plaintiff.; Graham link (supra).

The fact the agreement was initially oral is irrelevant. The license
was stipulated in writing in the pleadings. You are using a red
herring argument -- complaining about the form of license -- to
evade discussing automatic termination but it is not working.

After all these repeated citations, you couldn't find even one
case in which clear written conditions language was held to not

create conditions?

Not even one case?

The CAFC was well aware of this case and I will go with the
CAFC's analysis over yours.

Try that 'CAFC' line of authority in the Second Circuit where the
Cisco case is filed and the district judge would laugh your butt out
of court.

The real moral of the case that you cite is a different one:

An oral agreement isn't worth the paper it's written on.

A stipulated oral agreement is no longer oral.

It's *not* automatic rescission. Read it and weep Rahul:

[S]uch rescission did not occur automatically without some
affirmative steps on James's part. 22A N.Y. Jur. 2d Contracts § 497
(1996) (The failure of a party to perform his part of a contract
does not per se rescind it. The other party must manifest his
intention to rescind within a reasonable time.); see also Jacob
Maxwell, Inc. , 110 F.3d at 753 (Such a breach would do no more
than entitle [the composer] to rescind the agreement and revoke its
permission to play the song in the future, actions [the composer]
did not take during the relevant period. One party's breach does not
automatically cause [rescission] of a bilateral contract.);:
Graham v. James, 144 F.3d 229 (C.A.2 (N.Y.), 1998)

Sincerely,
Rjack :)

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Thufir Hawat wrote:

On Sun, 01 Mar 2009 10:55:35 -0500, Rjack wrote:


Any copying beyond that point is copyright infringement --
the GPL itself says so.

The court will ignore what the GPL says and instead rely on
what The Copyright Act of 1976 (As Amended) says in light of
prevailing federal and state law.



which imposes steep penalties per infraction.  To avoid those
steep penalties a settlement will be agreed to.  The settlement?
Follow the GPL.


The settlement agreement will, of course, be an agreement to pay
Cisco's attorney fees and require the SFLC to voluntarily dismiss
their silly propaganda suit -- same as always.

Nothing short of review by a court will settle the legal
enforcability of the GPL. The SFLC will NEVER, NEVER voluntarily
allow a federal district judge to interpret the GPL on the merits.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rjack u...@example.net writes:

 The opinion that you so triumphantly cite states: Graham and 
 James orally agreed to the licensing agreement and did not 
 clearly delineate its conditions and covenants.
 
 A case about an unclear oral agreement -- that's all you can come
  up with?

But the existence of a license was essentially uncontested in this
case

Now I see why you went astray. You thought the key question was whether
or not any license existed.

But there was no doubt whatsoever that some license existed.

The key question was: what were the exact conditions and/or covenants?
Since the license was oral, nobody was sure exactly what it said.  If
nobody is sure what a license says, obviously the courts will have to
guess. And the courts simply made the presumption, in accordance with
the established law, that if you are guesssing, then you should guess
convenants and not conditions.

So you take a case that involves guessing what two people agreed to, and
try to use it to tell us something about a written document that clearly
and repeatedly says provided that.

As I asked before: Is this the best you can do?
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

Rjack u...@example.net writes:


Rahul Dhesi wrote:

Rjack u...@example.net writes:



As I asked before: Is this the best you can do?



As I previously stated , it was all I needed to do -- correctly cite
the applicable law. I can't force you to learn or comprehend.


You haven't cited law that matches the facts. You cited law that says
that if you have an unclear license whose details nobody can remember,
then covenants are favored over conditions.  I don't see, and the CAFC
didn't see, how that applies to a clear written license that repeatedly
says provided that.


Sigh
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

Rjack u...@example.net writes:



As I asked before: Is this the best you can do?


As I previously stated , it was all I needed to do -- correctly cite
the applicable law. I can't force you to learn or comprehend.

Sincerely,
Rjack :)

-- You can lead a horse to water but you can't make him drink. --


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Re: Copyright Misuse Doctrine in Apple v. Psystar

Rjack u...@example.net writes:

Rahul Dhesi wrote:
 Rjack u...@example.net writes:

 As I asked before: Is this the best you can do?

As I previously stated , it was all I needed to do -- correctly cite
the applicable law. I can't force you to learn or comprehend.

You haven't cited law that matches the facts. You cited law that says
that if you have an unclear license whose details nobody can remember,
then covenants are favored over conditions.  I don't see, and the CAFC
didn't see, how that applies to a clear written license that repeatedly
says provided that.
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-03-01 Thread Hyman Rosen


Rjack wrote:

The settlement agreement will, of course, be an agreement to pay
Cisco's attorney fees and require the SFLC to voluntarily dismiss
their silly propaganda suit -- same as always.


What evidence do you have that the SFLC has ever payed the attorney's
fees for the other side? I'm sure you wish this was true, of course.

The publicly visible part of the settlement, of course, will be that
the GPLed sources are made properly available.


Nothing short of review by a court will settle the legal
enforcability of the GPL. The SFLC will NEVER, NEVER voluntarily
allow a federal district judge to interpret the GPL on the merits.


No defendant is ever going to allow a court to settle this on its
merits, since they would lose. That's why they settle and agree to
honor the GPL.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread David Kastrup

Rjack u...@example.net writes:

 David Kastrup wrote:

 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.  The
 cases up to now have been cutdry sufficiently for that not to be
 a viable option.

 So even if the SFLC carried on, they'd get an interpretation of
 the validity of copyright law in general rather than of the GPL.
 Nothing interesting in that.


 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.

-- 
David Kastrup
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Rahul Dhesi

David Kastrup d...@gnu.org writes:

Rjack u...@example.net 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.

At this point the plaintiff gets a permanent injunction and the
defendant is SOL.
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Rjack


Rahul Dhesi wrote:

David Kastrup d...@gnu.org writes:


Rjack u...@example.net 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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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Rahul Dhesi

Rjack u...@example.net writes:

That's not even wrong -- the SFLC raises the existence of the GPL
license in their Complaint. The defendant need not claim compliance
or for that matter need plead *anything*:

Copyright disputes involving only the scope of the alleged infringer's
license present the court with a question that essentially is one of
contract: whether the parties' license agreement encompasses the
defendant's activities. Just as in an ordinary contract action, the
party claiming a breach carries the burden of persuasion.; BOURNE v.
WALT DISNEY CO. 68 F.3d 621 (1995)

There is no need for the plaintiff to show a breach unless somebody has
shown that a contract formed in the first place. So at the very least,
the defendant has to argue that a contract formed; else it's a simple
copyright infringement case.

And by the way, were you not able to find a suitable case on the public
Internet? Is there a shortage of publicly accessible cases that support
your arguments?
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Alexander Terekhov

Rahul Dhesi wrote:

Rjack u...@example.net writes:

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

You are still mixing up the concepts of termination and rescission.

Stop being utterly silly, Rahul.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/2nd/969224.html

Finally, James argues that even if the nonpayment of royalties and the
removal of James's authorship credit amount to no more than breaches of
covenants, these breaches terminated the license. A material breach of a
covenant will allow the licensor to rescind the license and hold the
licensee liable for infringement for uses of the work thereafter. See
Rano v. Sipa Press, Inc. , 987 F.2d 580, 586 (9th Cir. 1993) ([A]
material breach of a licensing agreement gives rise to a right of
rescission which allows the nonbreaching party to terminate the
agreement.); Costello Publ'g Co. , 670 F.2d at 1045 ([E]ven if the
counterclaims asserted merely constitute a breach of contract, an action
for copyright infringement would lie if the breach is so material that
it allows the grantor power to recapture the rights granted so that any
further use of the work was without authority.); 3 Nimmer on Copyright
, supra , § 10.15[A], at 10-123- 10-125; see also Lulirama Ltd. v.
Axcess Broad. Servs., Inc. , 128 F.3d 872, 882-83 (5th Cir. 1997)
(holding that non-exclusive license is not revocable at will of
licensor). Under New York law, rescission is permitted if the breach is
material and willful, or, if not willful, so substantial and
fundamental as to strongly tend to defeat the object of the parties in
making the contract. Septembertide Publ'g, B.V. v. Stein and Day, Inc.
, 884 F.2d 675, 678 (2d Cir. 1989) (internal quotation marks and
citation omitted).

Even assuming Graham materially breached the licensing agreement and
that James was entitled to rescission, such rescission did not occur
automatically without some affirmative steps on James's part. 22A N.Y.
Jur. 2d Contracts § 497 (1996) (The failure of a party to perform his
part of a contract does not per se rescind it. The other party must
manifest his intention to rescind within a reasonable time.); see also
Jacob Maxwell, Inc. , 110 F.3d at 753 (Such a breach would do no more
than entitle [the composer] to rescind the agreement and revoke its
permission to play the song in the future, actions [the composer] did
not take during the relevant period. One party's breach does not
automatically cause [rescission] of a bilateral contract.) (emphasis
omitted). Similarly, although James sometimes characterizes the
licensing agreement as abandoned, abandonment of a contract can be
accomplished only through mutual assent of the parties, as demonstrated
by positive and unequivocal conduct inconsistent with an intent to be
bound. See Armour Co. v. Celic , 294 F.2d 432, 435-36 (2d Cir. 1961).
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. See id. at 436.

We vacate the copyright infringement award because: (i) the record does
not show that James was permitted to and did rescind the license or that
Graham and James agreed to abandon the licensing agreement

regards,
alexander.

Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Rjack


Alexander Terekhov wrote:

Rahul Dhesi wrote:

Rjack u...@example.net writes:


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

You are still mixing up the concepts of termination and
rescission.





Stop being utterly silly, Rahul.


Be gentle Alexander! Rahul's feelings are easily bruised. He can
dish out the ridicule a lot easier than he can take it.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Rahul Dhesi

Rjack u...@example.net writes:

 Here's a nice link from Australia (which follows English common 
 law same as in the US) that explains the difference:
 
 http://law.anu.edu.au/COLIN/Lectures/frust.htm
...

Here's a nice citation from the Second Circuit that demonstrates
that a termination of the grant of rights in a copyright license
is considered as a rescission. I'd forget Australia -- it's not in
the Second Circuit where its decisions the precedent...

I'm beginning to see how it could happen that you could quote so many
cases, and still get fundamental concepts (e.g. standing vs subject
matter jurisdiction, or termination of a license or contract vs
rescissoin of a contract) so wrong.

The quoted text above indicates the problem. You aren't using any
knowledge of the common law of contracts, derived from England and
further developed in the US by state courts.

Instead, you are taking isolated Circuit court cases and treating them
as if they define state contract law terms.  That's not going to give
you any useful results.  The Circuits don't define state contract law,
they merely apply it. And in doing so, they don't define contract law
terms, they merely apply them.

Essentially all of the contract law in the US comes intact from England,
with some further development by the state courts in the US. Not the
federal courts, but the state courts.

This is why you are gravely mistaken when you essentially argue that a
common law term is better understood from a Second Circuit opinion than
from a law summary from Australian contract law professor. What you can
do, however, is look for a Second Circuit case that includes a general
discussion of the topic and provides multiple citations to state law.
And then you can quote that. But I haven't seen you do that.

And the reason I picked that particular Australian link was not because
it's from Australia, but because it describes the difference between
termination and rescission very well. Those who want to learn will learn
from that. Those who don't may claim that the common law of contracts
comes from the Second Circuit.
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Thufir Hawat

On Fri, 27 Feb 2009 13:56:54 -0500, Hyman Rosen wrote:

 Alexander Terekhov wrote:
 http://en.wikipedia.org/wiki/EU_Copyright_Directive
 
 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:32001L0029:EN:HTML
  (27) The mere provision of physical facilities for enabling or
  making a communication does not in itself amount to communication
  within the meaning of this Directive.
 
 Since Verizon provides a link to an actiontec gateway URL, it can
 easily be argues that it's Actiontec, not Verizon, who is making the
 software available. Clearly, the SFLC beleieves so, since it is
 satisfied with having Actiontec provide the GPLed sources.


 I don't think a copyrighted jpg could be distributed that way, though.


-Thufir
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Thufir Hawat

On Fri, 27 Feb 2009 09:05:35 -0500, amicus_curious wrote:

 Thufir Hawat hawat.thu...@gmail.com wrote in message
 news:1blpl.46156$ci2.13...@newsfe09.iad...
 On Thu, 26 Feb 2009 15:26:56 -0500, amicus_curious wrote:


 Does the binary file which is being distributed reside on the verizon
 server?  If so, then Verizon would be required to make the source
 available upon request from a customer.  If the binary isn't on a
 Verizon server then Verizon has no obligations is the argument.

 The fact that there's a link on verizon.com which causes this binary to
 download doesn't prove that the binary file is on a Verizon server.

 Well, the link resolves to downloads.verizon.net and that is most
 certainly a Verizon site.  Verizon does not need to make any source
 available at least in regard to the BusyBox library, and indeed does not
 do so, since the case filed by the SFLC complaining of that practice was
 dismissed with predjudice.
 
 Try the link yourself.



None of the above demonstrate that the file(s) are stored on Verizon 
servers, the files could be hosted on Actiontek servers.


-Thufir
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-28 Thread Thufir Hawat

On Fri, 27 Feb 2009 14:41:47 -0500, amicus_curious wrote:


 Hyman Rosen hyro...@mail.com wrote in message
 news:axvpl.58231$6r1.31...@newsfe19.iad...
 amicus_curious wrote:
 Well, the link resolves to downloads.verizon.net and that is most
 certainly a Verizon site.

 You cannot know from the outside what the Verizon webserver is doing
 when it processes the actiontec gateway URL, because a webserver is a
 general purpose program which may take arbitrary action based on the
 form of the URL.

 Well you can try the link and see where you end up, eh?  The firmware
 update link resolves on the Verizon site, downloads.Verizon.net.  Have
 you not tried it yourself?  Are you afraid to do so?



Nothing you've written demonstrates that the files are stored on Verizon 
hardware.



-Thufir
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Re: Copyright Misuse Doctrine in Apple v. Psystar



Rahul Dhesi c.c.ei...@xrexxcopyr.usenet.us.com wrote in message 
news:go7vgf$4p...@blue.rahul.net...

amicus_curious a...@sti.net writes:


I don't know that they are afraid of Verizon, I think that they do
understand the meaning of dismissed with predjudice though and have no 
way

to complain of Verizon distributing executable code for Actiontec routers
that is not accompanied by any source code or by any reference to a GPL
license or even any acknowledgement of same.  Stay in denial, but that is
not a good thing to do in the long run.


A dismissal with prejudice just means you can't refile for a violation
that has already occurred.  You can always refile for violations
occuring after that.

It means you cannot file a complaint for the same thing on the same 
evidence.  The complaint was that Verizon was offering the Actiontec router 
containing firmware that was not being properly distributed according to the 
BusyBox GPL.  Do you think that Verizon can be sued by the BusyBox authors 
for continuing to distribute Actiontec firmware without regard to the GPL? 
Not in the USofA.


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Re: Copyright Misuse Doctrine in Apple v. Psystar



Thufir Hawat hawat.thu...@gmail.com wrote in message 
news:1blpl.46156$ci2.13...@newsfe09.iad...

On Thu, 26 Feb 2009 15:26:56 -0500, amicus_curious wrote:


Does the binary file which is being distributed reside on the verizon
server?  If so, then Verizon would be required to make the source
available upon request from a customer.  If the binary isn't on a Verizon
server then Verizon has no obligations is the argument.

The fact that there's a link on verizon.com which causes this binary to
download doesn't prove that the binary file is on a Verizon server.

Well, the link resolves to downloads.verizon.net and that is most certainly 
a Verizon site.  Verizon does not need to make any source available at least 
in regard to the BusyBox library, and indeed does not do so, since the case 
filed by the SFLC complaining of that practice was dismissed with 
predjudice.


Try the link yourself. 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

No, copyright law grants a monopoly on what may be done (e.g., copying,
public performance, ...), not where it may be done (who owns the server).


Copyright law contains exceptions and distinctions for digital
copying over networks. And when a user initiates an action from
a browser that goes to a webserver which obtains a file from
remote storage, is it the user, the webserver owner, or the
storage owner who is responsible for potential infringement?
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

http://www.law.cornell.edu/supct/pdf/99-1551P.ZO
The above ruling is *binding* on every federal court in the land.


The above ruling is was about a court dismissing a case
upon the merits, not a voluntary dismissal by the plaintiffs.
Not only that, the Supreme Court concluded
...the Maryland Court of Special Appeals erred in
 holding that the dismissal necessarily precluded the
 bringing of this action in the Maryland courts.

As is not atypical, the quotes you cite demonstrate the
opposite of what you hope to show.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-27 Thread Alexander Terekhov


Hyman Rosen wrote:
[...]
 copying over networks. And when a user initiates an action from
 a browser that goes to a webserver which obtains a file from

Hugh? In the case of 

http://www2.verizon.net/micro/actiontec/actiontec.asp

the initiator of an action relevant to the copyright laws is Verizon
because the *offer* comes from Verizon. BTW, under European copyright
laws, this is called making available. 

http://en.wikipedia.org/wiki/EU_Copyright_Directive

-
Definition of copyright

Articles 24 contain a brief definition of the property rights
associated with copyright and related rights. They distinguish the
reproduction right (Art. 2) from the right of communication to the
public or making available to the public (Art. 3): the latter is
specifically intended to cover publication and transmission on the
internet. The two names for the right derive from the WIPO Copyright
Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8  10
respectively).

The right of communication to the public or making available to the
public is also distinguished from the distribution right (Art. 4) by
the fact that it is not subject to the first-sale doctrine.
-

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.)
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Alexander Terekhov wrote:

http://en.wikipedia.org/wiki/EU_Copyright_Directive


http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
(27) The mere provision of physical facilities for enabling
or making a communication does not in itself amount to
communication within the meaning of this Directive.

Since Verizon provides a link to an actiontec gateway URL,
it can easily be argues that it's Actiontec, not Verizon, who
is making the software available. Clearly, the SFLC beleieves
so, since it is satisfied with having Actiontec provide the
GPLed sources.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-27 Thread Alexander Terekhov


Hyman Rosen wrote:
 
 Alexander Terekhov wrote:
  http://en.wikipedia.org/wiki/EU_Copyright_Directive
 
 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
  (27) The mere provision of physical facilities for enabling
  or making a communication does not in itself amount to
  communication within the meaning of this Directive.
 
 Since Verizon provides a link to an actiontec gateway URL,
 it can easily be argues that it's Actiontec, not Verizon, who
 is making the software available. 

Stop being such an idiot, Hyman. Even under your bizzare theory that
Verizon's host contacts and retransmits data from Actiontec's host for
each downloading, the facts are

(1) downloaders receive material from Verizon's host 

(2) Verizon selected that material, 

(3) Verizon initiates the transmission by offering that material on
http://www2.verizon.net/micro/actiontec/actiontec.asp.

Click the below link. The updated firmware will begin downloading
immediately.
  
http://www4.law.cornell.edu/uscode/17/512.html

regards,
alexander.

--
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(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.)
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Hyman Rosen wrote:

Alexander Terekhov wrote:

http://en.wikipedia.org/wiki/EU_Copyright_Directive


http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML 


(27) The mere provision of physical facilities for enabling
or making a communication does not in itself amount to
communication within the meaning of this Directive.

Since Verizon provides a link to an actiontec gateway URL,
it can easily be argues that it's Actiontec, not Verizon, who
is making the software available.


You never lose do you Hymen? You just mooove the goalposts.

Verizon told the SFLC to kiss their R-O-Y-A-L P-U-R-P-L-E A-S-S and 
the SFLC complied by filing a F.R.Civ.P. 41(a)1 voluntary dismissal 
W-I-T-H P-R-E-D-J-U-D-I-C-E.



Clearly, the SFLC beleieves
so, since it is satisfied with having Actiontec provide the
GPLed sources.


Yeh. . . especially since it ain't got no friggin' choice.

You should stop attempting to spin the BusyBox cases and polish your
tale as to why the SFLC will fail to get the GPL enforced on its 
merits in the Cisco case.


Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar



Hyman Rosen hyro...@mail.com wrote in message 
news:axvpl.58231$6r1.31...@newsfe19.iad...

amicus_curious wrote:
Well, the link resolves to downloads.verizon.net and that is most 
certainly a Verizon site.


You cannot know from the outside what the Verizon webserver
is doing when it processes the actiontec gateway URL, because
a webserver is a general purpose program which may take arbitrary
action based on the form of the URL.

Well you can try the link and see where you end up, eh?  The firmware update 
link resolves on the Verizon site, downloads.Verizon.net.  Have you not 
tried it yourself?  Are you afraid to do so?



Verizon does not need to make any source available at least in

 regard to the BusyBox library, and indeed does not do so, since
 the case filed by the SFLC complaining of that practice was

dismissed with predjudice.


The SFLC presumably concluded the same thing, which is why they
agreed that it was sufficient for Actiontec to make the source
code available. Since Verizon presumably does not copy firmware
onto the routers themselves, they incur no GPL obligation for
distributing the routers they have purchased from Actiontec. As
far as their firmware download URL, it would require information
from Verizon to be able to determine whether that incurs a GPL
violation, which depends on whether plain copyright law would
forbid this download. As bringers of the action, the SFLC would
have been in the best position to learn the details from Verizon,
and the seem to have concluded that Verizon does not incur such
an obligation.


You are silly. 


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

Yeh. . . especially since it ain't got no friggin' choice.


Why do you believe they had no choice?
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-27 Thread Rahul Dhesi

Rjack u...@example.net writes:

 A dismissal with prejudice just means you can't refile for a 
 violation that has already occurred.  You can always refile for 
 violations occuring after that.
 
 Rjack, how come you don't cite cases when amicus_curious gets the
  law wrong?

OK Rahul. Here's your case from the United States Supreme Court:

See also 18 Wright  Miller § 4435, at 329, n. 4 (Both parts of
Rule 41 ... use the phrase 'without prejudice' as a contrast to
adjudication on the merits); 9 id., § 2373, at 396, n. 4 ( '[W]ith
prejudice' is an acceptable form of shorthand for 'an adjudication
upon the merits').;SEMTEK INTL INC. V. LOCKHEED MARTIN CORP. 531
U.S. 497 (2001) http://www.law.cornell.edu/supct/pdf/99-1551P.ZO

Well, at least you included a URL (PDF though it is). But this is not
about the scope of a dismissal with prejudice.  What's the scope of a
dismissal with prejudice? Does it apply to future violations as well?

To clarify, suppose somebody hits you, and you sue him, and he succeeds
in persuading you to dismiss with prejudice. Does this now give that
person a lifetime license to hit you any time he wishes? Citations would
be great!
-- 
Rahul
http://rahul.rahul.net/
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:

Rjack u...@example.net writes:

A dismissal with prejudice just means you can't refile for a 
violation that has already occurred.  You can always refile for 
violations occuring after that.


Rjack, how come you don't cite cases when amicus_curious gets the
 law wrong?



OK Rahul. Here's your case from the United States Supreme Court:



See also 18 Wright  Miller § 4435, at 329, n. 4 (Both parts of
Rule 41 ... use the phrase 'without prejudice' as a contrast to
adjudication on the merits); 9 id., § 2373, at 396, n. 4 ( '[W]ith
prejudice' is an acceptable form of shorthand for 'an adjudication
upon the merits').;SEMTEK INT’L INC. V. LOCKHEED MARTIN CORP. 531
U.S. 497 (2001) http://www.law.cornell.edu/supct/pdf/99-1551P.ZO


Well, at least you included a URL (PDF though it is). But this is not
about the scope of a dismissal with prejudice.  What's the scope of a
dismissal with prejudice? Does it apply to future violations as well?


It gets comlplex. It depends on whether the district court has 
diversity jurisdiction in which case a rare 'federal common law' 
provision is used or non-diversity which uses the resident state 
common law provisions governing dismissals for the appropriate 
section and subsection of FRCP 41. The BusyBox cases will use New 
York State law as controlling. Dismissals with prejudice pursuant 
to Rule 41(a)(1) will control.




To clarify, suppose somebody hits you, and you sue him, and he succeeds
in persuading you to dismiss with prejudice. Does this now give that
person a lifetime license to hit you any time he wishes? Citations would
be great!

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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rahul Dhesi wrote:


To clarify, suppose somebody hits you, and you sue him, and he
succeeds in persuading you to dismiss with prejudice. Does this
now give that person a lifetime license to hit you any time he
wishes? Citations would be great!


To clarify, suppose somebody lies about you hitting him and he sues
you and you persuade him to drop the suit with prejudice. Does this
now give that person a lifetime license to lie about you hitting him
anytime he wishes? You may do your own legal research to support
your conclusions. Play your own devil's advocate put your own time
into it. . . The BusyBox suits are over. Get over spinning the
hypothetical settlements.

Move on to creating explanations to justify the SFLC's evasion of an
interpretation of the GPL on its merits in the upcoming expected
voluntary dismissal in the Cisco case.

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar


Rjack wrote:

The BusyBox suits are over. Get over spinning the
hypothetical settlements.


After each case was settled, the defendants or their agents
made the source code properly available under the GPL.


Move on to creating explanations to justify the SFLC's evasion of an
interpretation of the GPL on its merits in the upcoming expected
voluntary dismissal in the Cisco case.


The explanation is that once the parties reach agreement on a
settlement, the case is dismissed. Courts do not hold trials
when the parties no longer have a dispute.
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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-27 Thread David Kastrup

Hyman Rosen hyro...@mail.com writes:

 Rjack wrote:
 The BusyBox suits are over. Get over spinning the
 hypothetical settlements.

 After each case was settled, the defendants or their agents
 made the source code properly available under the GPL.

 Move on to creating explanations to justify the SFLC's evasion of an
 interpretation of the GPL on its merits in the upcoming expected
 voluntary dismissal in the Cisco case.

 The explanation is that once the parties reach agreement on a
 settlement, the case is dismissed. Courts do not hold trials
 when the parties no longer have a dispute.

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.  The cases up to now have
been cutdry sufficiently for that not to be a viable option.

So even if the SFLC carried on, they'd get an interpretation of the
validity of copyright law in general rather than of the GPL.  Nothing
interesting in that.

-- 
David Kastrup
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Re: Copyright Misuse Doctrine in Apple v. Psystar


David Kastrup wrote:

Hyman Rosen hyro...@mail.com writes:


Rjack wrote:
The BusyBox suits are over. Get over spinning the 
hypothetical settlements.
After each case was settled, the defendants or their agents 
made the source code properly available under the GPL.



Move on to creating explanations to justify the SFLC's
evasion of an interpretation of the GPL on its merits in the
upcoming expected voluntary dismissal in the Cisco case.
The explanation is that once the parties reach agreement on a 
settlement, the case is dismissed. Courts do not hold trials 
when the parties no longer have a dispute.


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.  The
cases up to now have been cutdry sufficiently for that not to be
a viable option.

So even if the SFLC carried on, they'd get an interpretation of
the validity of copyright law in general rather than of the GPL.
Nothing interesting in that.



Would the GPL be construed as a contract and interpreted under state
law?

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Re: Copyright Misuse Doctrine in Apple v. Psystar

2009-02-27 Thread Peter Köhlmann

Rjack wrote:

 David Kastrup wrote:
 Hyman Rosen hyro...@mail.com writes:
 
 Rjack wrote:
 The BusyBox suits are over. Get over spinning the
 hypothetical settlements.
 After each case was settled, the defendants or their agents
 made the source code properly available under the GPL.
 
 Move on to creating explanations to justify the SFLC's
 evasion of an interpretation of the GPL on its merits in the
 upcoming expected voluntary dismissal in the Cisco case.
 The explanation is that once the parties reach agreement on a
 settlement, the case is dismissed. Courts do not hold trials
 when the parties no longer have a dispute.
 
 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.  The
 cases up to now have been cutdry sufficiently for that not to be
 a viable option.
 
 So even if the SFLC carried on, they'd get an interpretation of
 the validity of copyright law in general rather than of the GPL.
 Nothing interesting in that.
 
 
 Would the GPL be construed as a contract and interpreted under state
 law?

No. It is a licence

And you are dumb. Incredibly so
-- 
Tact, n.:
The unsaid part of what you're thinking.


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Re: Copyright Misuse Doctrine in Apple v. Psystar


Peter Köhlmann wrote:

Rjack wrote:


David Kastrup wrote:

Hyman Rosen hyro...@mail.com writes:


Rjack wrote:
The BusyBox suits are over. Get over spinning the 
hypothetical settlements.

After each case was settled, the defendants or their agents
 made the source code properly available under the GPL.

Move on to creating explanations to justify the SFLC's 
evasion of an interpretation of the GPL on its merits in

the upcoming expected voluntary dismissal in the Cisco
case.

The explanation is that once the parties reach agreement on
a settlement, the case is dismissed. Courts do not hold
trials when the parties no longer have a dispute.

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.  The cases up to now have been cutdry sufficiently
for that not to be a viable option.

So even if the SFLC carried on, they'd get an interpretation
of the validity of copyright law in general rather than of
the GPL. Nothing interesting in that.


Would the GPL be construed as a contract and interpreted under
state law?


No. It is a licence

And you are dumb. Incredibly so


Are the appellate judges who authored the following decisions also
incredibly dumb?

Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995)

Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them.; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006)

Sincerely,
Rjack :)
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Re: Copyright Misuse Doctrine in Apple v. Psystar