from:"Alexander Terekhov"


Tim Jackson wrote:
 
 On Thu, 04 Oct 2012 20:36:36 +0200, Alexander Terekhov wrote...
 
  The distribution right comes by statute as addition to the granted
  reproduction right / right to prepare derivative works.
 
 I'm not sure if this is a source of confusion here, but please remember
 that the reproduction right and the distribution right are both
 exclusive statutory rights which belong to the copyright holder.  They
 allow him to *prevent* reproduction and distribution respectively.

Exclusive distribution right is severely limited by 'first sale' /
exhaustion meaning that exclusivity allows to forbid distribution of
copies made unlawfully (pirated copies). Distribution of lawfully made
copies by owners of copies are not covered by the exclusive distribution
right of the copyright owners.

Do you agree that in the context of copyleft and other public licenses
it is simply impossible to make a copy in machine readable form
unlawfully?

If not then give an example but forget about eventual subsequent
distribution of that copy for a moment (that is another act shielded by
the doctrine of exhaustion).
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

Tim Jackson wrote:

[... sale ...]

Do you seriously believe that gifted copies don't fall under 'first
sale'?

Do you seriously believe that copies made with permission e.g. 'you may
make as many copies verbatim as you like and even create derivatives and
make as many copies of those as you like as well... both in exchange for
nothing' (gratis permission) don't fall under 'first sale'?
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Re: [upcoming] The European Court of Justice on 'Software' First Sale


Tim Jackson wrote:
[...]
 Before you can distribute copies, you have to make them.  That is only
 permitted either:
(a) in accordance with the conditions of the copyleft licence...

And what are the 'conditions' for MAKING copies under copyleft?

Again: recall that subsequent act of eventual distribution under 'first
sale' statutory exception is irrelevant as far as copyright is
concerned.

All copyleft requirements are for the act of distribution of copies
made, not the act of making copies.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale


Tim Jackson wrote:
[...]
 So yes, certainly the copyright holder can say you can make as many
 copies as you like.  But he can also make that subject to conditions -
 as a copyleft licence does.

Hey, I've downloaded GCC binary package and made several copies of it...
what are the GPL 'conditions' that I should have fulfilled for the act
of making copies?

The answer is 'no conditions for the act of making copies' and you
simply don't want to admit it.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale


Tim Jackson wrote:
 
 On Fri, 05 Oct 2012 14:13:10 +0200, Alexander Terekhov wrote...
 
  Tim Jackson wrote:
  [...]
   Before you can distribute copies, you have to make them.  That is only
   permitted either:
  (a) in accordance with the conditions of the copyleft licence...
 
  And what are the 'conditions' for MAKING copies under copyleft?
 
  Again: recall that subsequent act of eventual distribution under 'first
  sale' statutory exception is irrelevant as far as copyright is
  concerned.
 
  All copyleft requirements are for the act of distribution of copies
  made, not the act of making copies.
 
 You are again forgetting that the CJEU decision does not exhaust
 anything.  It starts from the assumption that the right to distribute
 *one specific copy* is *already* exhausted, and provides a mechanism to
 do that by making a replacement copy, the previous copy being rendered
 unusable.
 
 But it doesn't permit any more widespread distribution of new copies.
 It doesn't produce any further exhaustion, except for that one specific
 copy which is already exhausted.
 
 Any such distribution of new copies is permitted only by the copyleft
 licence, under the copyleft conditions.

Hey, I've downloaded GCC binary package and made several copies of it...
what are the GPL 'conditions' that I should have fulfilled for the act
of making copies?

The answer is 'no conditions for the act of making copies' and you
simply don't want to admit it.

As far as distribution is concerned all new copies that I've made are
lawfully made (with the GPL permission to reproduce) and since I own the
copies that I've made I'm going to distribute these new copies under
'first sale' exception to the exclusive distribution right utterly
ignoring the GPL 'conditions' for distribution as if the GPL would not
pretend to convey any distribution right at all.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-10-04 Thread Alexander Terekhov


Tim Jackson wrote:
[...]
 Again, I've emphasised that copy.  There's no exhaustion of the right
 to control the making and distribution of **further** copies.

Don't blend separate statutory rights together - I mean reproduction
(making) and distribution.

Exclusive distribution right gives copyright owners a right to sue in
tort not only makers of pirated copies but also distributors who don't
make pirated copies themselves.

In the context of copyleft and and other public licenses pirated copies
simply don't exist and it is simply redundant/not needed to 'grant' the
distribution right because all copies made by
licensees/downloaders-without-contract-formation/etc. fall under
doctrine of exhaustion and can be distributed under shield of statutory
'first sale' exception to the exclusive distribution right, not a right
granted by license contract.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-10-04 Thread Alexander Terekhov


Tim Jackson wrote:

[... the copy concerned being placed on the European market ...]

Exhaustion of the distribution right covers all lawfully made copies
owned by strangers regarding copyright in a work fixated in a copy. A
copy does not necessarily have to be transferred to the owner on a
physical medium or somehow specially placed on the European market.
Having the copy made with the authorization of the copyright owner (i.e.
with permission to reproduce / prepare derivative works conveyed by the
copyleft and other public licenses) is enough.

It is even possible that some unauthorized copies may fit the bill if
the circumstances suggest that they are lawfully made.

The distribution right comes by statute as addition to the granted
reproduction right / right to prepare derivative works.

License contract may attempt to restrict that distribution freedom
('only private use, no distribution', copyleft 'conditions' imposed for
distribution of 'further' copies made, etc.) but that has nothing to do
with statutory tort (copyright infringement) in the case of breach of
restrictions/requirements for distribution.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-10-02 Thread Alexander Terekhov


Tim Jackson wrote:
[...]
 How much bearing do you think 17 U.S.C. has on European law?

17 U.S.C. is currently known in European law as Article 5 
Exceptions to the restricted acts of DIRECTIVE 2009/24/EC:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF

Article 5

Exceptions to the restricted acts

1. In the absence of specific contractual provisions, the 
acts referred to in points (a) and (b) of Article 4(1) shall 
not require authorisation by the rightholder where they are 
necessary for the use of the computer program by the lawful 
acquirer in accordance with its intended purpose, including 
for error correction.

2. The making of a back-up copy by a person having a right
to use the computer program may not be prevented by contract
in so far as it is necessary for that use.

...
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-10-02 Thread Alexander Terekhov


Alexander Terekhov wrote:

[... 17 U.S.C. 109 and 17 U.S.C. 117 ...]

  How much bearing do you think 17 U.S.C. has on European law?
 
 17 U.S.C. is currently known in European law as Article 5
   ^
   |
117 ---+

 Exceptions to the restricted acts of DIRECTIVE 2009/24/EC:
 
 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF
 
 Article 5
 
 Exceptions to the restricted acts
 
 1. In the absence of specific contractual provisions, the
 acts referred to in points (a) and (b) of Article 4(1) shall
 not require authorisation by the rightholder where they are
 necessary for the use of the computer program by the lawful
 acquirer in accordance with its intended purpose, including
 for error correction.
 
 2. The making of a back-up copy by a person having a right
 to use the computer program may not be prevented by contract
 in so far as it is necessary for that use.
 
 ...

17 U.S.C. 109 is currently known in European law as Article 4(2):

2. The first sale in the Community of a copy of a program
by the rightholder or with his consent shall exhaust the 
distribution right within the Community of that copy, with 
the exception of the right to control further rental of the
program or a copy thereof.
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-10-01 Thread Alexander Terekhov


Richard Tobin wrote:
 
 In article 5065832f.12351...@web.de,
 Alexander Terekhov  terek...@web.de wrote:
 
 Thus copies made under copyleft (and other public licenses) fall under
 exhaustion doctrine preventing copyright owners (licensors) using tort
 theory (copyright infringement claims) regarding control of terms and
 conditions for further distribution.
 
 Right, and I hear that in the US income tax is unconstitutional.

quote author=Hollaar

In article 43db926d...@web.de tere...@web.de writes:
Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily promised,
but because she doesn't have any right to act at all except as the
license permits. [quoting Eben Moglen]

That might be true IF she doesn't have any right to act at all except
as the license permits.  But as I have pointed out here and in my
comments to the FSF regarding the new GPLv3, that is not the case.
United States copyright law provides a number of exceptions to the
exclusive rights of the copyright owner, including first sale as
covered in 17 U.S.C. 109 and the right in 17 U.S.C. 117 of the owner
of a copy of a computer to reproduce or adapt it if necessary to use
it.

The convenient redefinition of things in the GPL reminds me of a
quote from Abraham Lincoln:

 How many legs does a dog have if you call the tail a leg?
 Four.  Calling a tail a leg doesn't make it a leg.

/quote

Note that Hollar worked with the Chief Judge and the Chief 
Intellectual Property Counsel to the Senate Judiciary Committee 
on Internet, copyright, and patent issues as a Committee Fellow...
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-09-28 Thread Alexander Terekhov


Ivan Shmakov wrote:
 
  Alexander Terekhov terek...@web.de writes:
 
 [Dropping news:comp.os.linux.advocacy, for nntp://aioe.org/ is
 unlikely to allow it.]
 
   Official death of copyleft in EU:
 
   http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html
 
 Well, thanks for an early warning, but frankly, I don't quite
 understand what it has to do with copyleft?

Copies made under copyleft (and other public licenses) are not pirated
(illegal).

Copies made under copyleft (and other public licenses) are lawfully made
and initially are owned by the licensees (legal persons making use of
the reproduction right... downloading without a license contract aside
for a moment).

Thus copies made under copyleft (and other public licenses) fall under
exhaustion doctrine preventing copyright owners (licensors) using tort
theory (copyright infringement claims) regarding control of terms and
conditions for further distribution.

Got it now?
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Re: [upcoming] The European Court of Justice on 'Software' First Sale

2012-09-25 Thread Alexander Terekhov

Official death of copyleft in EU:

http://www.gamerlaw.co.uk/2012/07/legality-of-second-hand-sales-in-eu.html

...

The case related to a dispute between software companies Oracle and
UsedSoft over whether UsedSoft could sell businesses and consumers used
licences for Oracle software without Oracles permission (previously
discussed here).  Oracle therefore took UsedSoft to court in Germany,
which was referred to the Court of Justice of the European Union
(CJEU).

...

Key Issue 1: is the sale of software a first sale?

The CJEU held that 'sale' means an agreement by which a person, in
return for payment, transfers to another person his rights of ownership
in an item of tangible or intangible property belonging to him (para
42).

Whether there is a first sale of software therefore depends on whether
that right of ownership is transferred by the software developer to
the purchaser.

Oracle argued that there is no right of ownership transferred to its
purchasers, and therefore no first sale of its software at all,
because it makes its software available for free download and separately
enters into licence agreements with a downloader in return for that
downloader paying a fee.  Oracle argued therefore that this was
therefore a licence arrangement, not a sales arrangement.

The CJEU disagreed.  It held the downloading of a copy of a computer
program and the conclusion of a user licence agreement for that copy
form an indivisible whole. Downloading a copy of a computer program is
pointless if the copy cannot be used by its possessor. Those two
operations must therefore be examined as a whole for the purposes of
their legal classification (para 44).

The CJEU therefore decided that making software available for download
while at the same time entering into a licence agreement with the
downloader and receiving payment for it examined as a whole, involve
the transfer of the right of ownership of the copy of the computer
program in question (para 45).

So, the CJEU held that since the sale of software involved a transfer
of ownership in the software from the developer to the purchaser, that
means it also constitutes a first sale under the InfoSoc Directive. 
That in turn means that the developer's right of distribution is
exhausted by that first sale (para 48).

Key Issue 2: so if the sale of software by the developer to a first
purchaser constitutes a first sale that exhausts the right of
distribution, can the developer still control second hand sales using
its right of reproduction?  

The key to understanding this issue is to remember that there are
separate rights of distribution and rights of reproduction in EU
copyright law.  By this stage in the case, the CJEU had decided that
rights of distribution weren't a problem for second hand sales.  Now it
had to decide whether software developers retain an exclusive right to
control reproduction under Article 5(1) of Directive 2009/24 (aka the
'Computer Programs Directive') (which, if they do, could still be used
to prohibit second hand sales).

Essentially, the CJEU decided that the right to control reproduction is
lost against the second purchaser (the reasons why take some explaining,
but essentially it is because a second purchaser is held to be a lawful
acquirer of the software under Article 5(1) of the Computer Program
Directive).

Other issues discussed:

Issue 3: can the wording of the EU legislation be read such that the
first sale/exhaustion of rights principle only applies to tangible
software?

No, said the CJEU following some slightly complex discussion of the
relevant legislation (paragraphs 55  58).  Later, it said:  from an
economic point of view, the sale of a computer program on CD-ROM or DVD
and the sale of a program by downloading from the internet are similar.
The on-line transmission method is the functional equivalent of the
supply of a material medium (para 69).

And even more clear still: To limit the applicationof the principle of
the exhaustion of the distribution right solely to copies of computer
programs that are sold on a material medium would allow the copyright
holder to control the resale of copies downloaded from the internet and
to demand further remuneration on the occasion of each new sale, even
though the first sale of the copy had already enabled the rightholder to
obtain an appropriate remuneration. Such a restriction of the resale of
copies of computer programs downloaded from the internet would go beyond
what is necessary to safeguard the specific subject-matter of the
intellectual property concerned (para 63).

Issue 4: does it matter that the software has been
patched/updated/changed between being bought by the first purchaser and
then transferred to the second purchaser?

Oracle argued that, because the software in question had been updated
under a maintenance agreement since it was bought by the first
purchaser, it could not be said that the second purchaser was purchasing
the same software.  Therefore, Oracle

Re: Blowhard Bradley Kuhn and his fraud

The farce is over.

http://terekhov.de/204.pdf

regards,
alexander.

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No source code for Hyman - was: Re: Sharing the GPL source code, with value addition by vendor specific to his hardware?


Hyman Rosen wrote:
 
 On 10/13/2010 8:17 AM, Alexander Terekhov wrote:
  Hey Hyman how is the progress to get the source code for a refurbished
  Insignia player you so badly needed some time ago, silly?
 
  chuckles
 
 Nothing yet. This is, of course, why the SFLC is still pressing
 its suit against Insignia. If it gets to trial, Insignia will be
 in the rather odd position of having promised to comply with the
 GPL in its manual. Sounds like promissory estoppel to me.

On 06/14/2011 it was ordered to dismiss the claims against Insignia
(the defendant was Best Buy) WITH PREJUDICE per stipulation filed by
Busybox Plaintiffs and Insignia (the defendant was Best Buy).

http://terekhov.de/204.pdf

(In exchange Best Buy agreed that its counter claims against Busybox
plaintiffs be dismissed as well).

Forget the source code, Hyman.

Oh mighty mighty GPL...

chuckles

regards,
alexander.

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Re: No source code for Hyman - was: Re: Sharing the GPL source code,with value addition by vendor specific to his hardware?

Hyman Rosen wrote:

[... blah blah ...]

Stop being silly and instead try to get the source code for Insignia
player that you reportedly needed so badly for so long time...

Then post here the results.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


Hyman Rosen wrote:

[... blah blah ...]

Stop being silly and instead try to get the source code for Insignia
player that you reportedly needed so badly for so long time...

Then post here the results.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


David Kastrup wrote:
 
 Alexander Terekhov terek...@web.de writes:
 
  Hyman Rosen wrote:
 
  [... attorneys' fees to Best Buy Inc. counsel ... ]
 
  According to the document that AT posted, http://terekhov.de/204.pdf:
   Pursuant to Federal Rule of Civil Procedure 41, plaintiffs
   Software Freedom Conservancy, Inc. and Erik Anderson and defendant
   BEST BUY CO.,INC hereby dismiss their claims against each other from
   within this action WITH PREJUDICE with respect to any past claims for
   certain Insignia Blu-ray products (NS-WBRDVD, NS-BRDVD3, NS-BRHTIB,
   NS-BRDVD3-CA, NS-WBRDVD2, NS-BRDVD4, NS-BRDVD4-CA, NS-BRDVD, 
  NS-2BRDVD,
   and NS-BDLIVB01) and without costs to any party. Plaintiffs maintain
   this action against all other defendants.
 
  Why do you claim, in contradiction to this document, that SFLC
  paid any costs to Best Buy?
 
  Not in contradiction. Court costs != attorney's fees. Apples and
  oranges, Hyman.
 
 So the payments are just your personal fantasies again, made up to match
 your impressively off-skew view of legal matters.

I made no claims regarding payments, silly. I just pointed out that such
payments are not in contradiction.

regards,
alexander.
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Re: Blowhard Bradley Kuhn and his fraud


Hyman Rosen wrote:

[... attorneys' fees to Best Buy Inc. counsel ... ]

 According to the document that AT posted, http://terekhov.de/204.pdf:
  Pursuant to Federal Rule of Civil Procedure 41, plaintiffs
  Software Freedom Conservancy, Inc. and Erik Anderson and defendant
  BEST BUY CO.,INC hereby dismiss their claims against each other from
  within this action WITH PREJUDICE with respect to any past claims for
  certain Insignia Blu-ray products (NS-WBRDVD, NS-BRDVD3, NS-BRHTIB,
  NS-BRDVD3-CA, NS-WBRDVD2, NS-BRDVD4, NS-BRDVD4-CA, NS-BRDVD, NS-2BRDVD,
  and NS-BDLIVB01) and without costs to any party. Plaintiffs maintain
  this action against all other defendants.
 
 Why do you claim, in contradiction to this document, that SFLC
 paid any costs to Best Buy?

Not in contradiction. Court costs != attorney's fees. Apples and
oranges, Hyman.

regards,
alexander.
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Re: Blowhard Bradley Kuhn and his fraud


Hyman Rosen wrote:
 
 On 6/17/2011 9:35 AM, Alexander Terekhov wrote:
  SFLC claimed settlements without documentation and you were
   agreeingly happy with such claims. Why the difference now, Hyman?
 
 Because . . . [blah blah]

From google:

Another BusyBox victory for SFLC - SPTechWeb
7 Mar 2008 ... High-Gain Antennas had been sued by the SFLC in the U.S.
District Court for the Southern District of New York, on behalf of
BusyBox ...
www.sysmannews.com/SearchResult/31807 - Cached
BusyBox Developers Agree To End GPL Lawsuit Against Verizon ...
17 Mar 2008 ... The Software Freedom Law Center (SFLC) today announced
that ... Actiontec has agreed to appoint an Open Source Compliance
Officer within its ...
www.softwarefreedom.org/news/2008/.../busybox-verizon/ - Cached -
Similar
BusyBox Developers and Xterasys Corporation Agree to Settle GPL ...
17 Dec 2007 ... BusyBox is a lightweight set of standard Unix utilities
...
www.softwarefreedom.org/.../busybox-xterasys-settlement/ - Cached -
Similar
Show more results from softwarefreedom.org
BusyBox developers reach settlement with Xterasys
18 Dec 2007 ... In an announced yesterday, the SFLC reveals that the
BusyBox ... appoint an internal open source compliance officer to
oversee the company's ...
arstechnica.com/.../busybox-developers-reach-settlement-with-xterasys.ars
- Cached
Best Buy, Samsung, And Westinghouse Named In SFLC Suit Today [LWN.net]
14 Dec 2009 ... The SFLC confirmed BusyBox violations in nearly 20
separate products  to appoint a GPL compliance officer so it doesn't
happen again. ...
lwn.net/Articles/366467/ - Cached - Similar

Stop being utter idiot, Hyman.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


Hyman Rosen wrote:

[...]

 Have a nice day, Hyman! 
   _ _ 
  |A|   |A| 
  |L|   |L| 
  |E|   |E| 
  |X|   |X| 
  |A|   |A| 
  |N| /^^^\ |N| 
 _|D|_  (| o |)  _|D|_ 
   _| |E| | _(_---_)_ | |E| |_ 
  | | |R| ||-|_| |_|-|| |R| | | 
  |  |   / \   |  | 
   \/  / /(. .)\ \  \/ 
 \/  / /  | . |  \ \  \/ 
   \  \/ /||Y||\ \/  / 
\__/  || ||  \__/ 
  () () 
  || || 
 ooO Ooo 

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


 Have a nice day, Hyman! 
   _ _ 
  |A|   |A| 
  |L|   |L| 
  |E|   |E| 
  |X|   |X| 
  |A|   |A| 
  |N| /^^^\ |N| 
 _|D|_  (| o |)  _|D|_ 
   _| |E| | _(_---_)_ | |E| |_ 
  | | |R| ||-|_| |_|-|| |R| | | 
  |  |   / \   |  | 
   \/  / /(. .)\ \  \/ 
 \/  / /  | . |  \ \  \/ 
   \  \/ /||Y||\ \/  / 
\__/  || ||  \__/ 
  () () 
  || || 
 ooO Ooo 

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

RJack wrote:
 
 On 6/17/2011 8:55 AM, Hyman Rosen wrote:
  On 6/17/2011 8:47 AM, Alexander Terekhov wrote:
  The contradiction would be if the court would order not to pay
  attorney's fees.
 
  Do you believe that at the conclusion of a case, one party pays the
  attorney fees of another unless a court instructs them not to do so?
  How odd.
 
 How else do you believe a badly losing plaintiff gets a winning
 defendant to agree to a stipulated Rule 41 voluntary dismissal WITH
 PREDJUDICE?

David Leichtman 

Defendant  
Best Buy Co., Inc.  represented by David Leichtman 
Robins, Kaplan, Miller  Ciresi, LLP (NYC) 
601 Lexington Avenue, Suite 3400 
New York, NY 10022 
(212) 980-7400 
Fax: (212) 980-7499 
Email: dleicht...@rkmc.com 
LEAD ATTORNEY 
ATTORNEY TO BE NOTICED

(TERMINATED: 06/14/2011)

strikes again... 

The PACER reports:

06/30/2011 207  NOTICE OF APPEARANCE by David Leichtman on behalf of
ZYXEL Communications Inc. (Leichtman, David) (Entered: 06/30/2011)

regards,
alexander.

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Re: SFLC won a motion


Homer wrote:
[...]
 You don't /seriously/ expect fascist nuts like Terekhov to understand
 value in terms other than money, do you?

The entire point of copyright law is to give intangible work monetary
value by imposing monopoly on certain acts.

The German copyright law is very explicit in this respect:

http://www.gesetze-im-internet.de/urhg/__32.html

Der Urheber hat für die Einräumung von Nutzungsrechten und die
Erlaubnis zur Werknutzung Anspruch auf die vertraglich vereinbarte
Vergütung. Ist die Höhe der Vergütung nicht bestimmt, gilt die
angemessene Vergütung als vereinbart. 

Back in 2000, 'free' software folks went to German Parliament asking to
add exemption to that rule (aka Linux-Klausel):

Der Urheber kann aber unentgeltlich ein einfaches Nutzungsrecht für
jedermann einräumen.

http://de.wikipedia.org/wiki/Linux-Klausel

Hintergrund und Geschichte [Bearbeiten]

Am 22. Mai 2000 hat das Bundesjustizministerium einen Gesetzesvorschlag
eingereicht, der das Urheberrecht modernisieren sollte. Dabei wurde in
den Bestimmungen zur angemessenen Vergütung des Urhebers festgelegt,
dass dem Schöpfer eines Werkes eine angemessene Beteiligung an den
Einnahmen gebührt.[2] In der Open-Source-Bewegung wurde dieser Vorschlag
stark kritisiert, da er das Geschäftsmodell von freier Software und
anderen auf Lizenzen wie der GPL beruhenden Werken unmöglich machen
würde. Dies führte dazu, dass auf Vorschlag des Instituts für
Rechtsfragen der Freien und Open Source Software die heute gültige
Bestimmung im Gesetzesentwurf vom 26. Juni 2001 von Fraktionen des
Bundestags aufgenommen wurde.[3] In der Begründung hieß es dazu:

Der gesetzliche Vergütungsanspruch ist im Interesse des Urheberschutzes
im Voraus unverzichtbar, soweit der Urheber nicht jedermann
unentgeltlich ein einfaches Nutzungsrecht einräumt (Absatz 4 Satz 1).
Die aufgenommene Einschränkung beugt einer befürchteten
Rechtsunsicherheit für Open Source Programme und anderem Open
Content vor; im Bereich derartiger Lizenzbeziehungen, bei denen der
Urheber sein Werk der Allgemeinheit unentgeltlich zur Verfügung stellt,
kann weder eine zu Lasten des Urhebers gestörte Vertragsparität
vorliegen, noch sind insofern Missbrauchsmöglichkeiten denkbar.[4]
Dieser Vorschlag wurde ins verabschiedete Gesetz aufgenommen. Er stellt
die Verwendung freier Lizenzen wie der GNU General Public License in
Deutschland auf eine rechtlich abgesicherte Basis.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


RJack wrote:
[...]
 Let the games begin anew with an amended complaint.

LOL.

http://www.terekhov.de/224.pdf

At the time of the original complaint, Plaintiffs had only registered
their copyright in one version of BusyBox, version 0.60.3. Compl. ¶ 31.
However, Plaintiffs did not limit their complaint to just that
registered copyright, but instead asserted their unregistered copyrights
as well. Plaintiffs believe they are entitled to assert their
unregistered copyrights along with the assertion of their registered
copyright in order to seek an injunction against infringement of those
unregistered copyrights, even if they may not be entitled to seek
damages for infringement of those copyrights when unregistered.
Nevertheless, Plaintiffs have since registered or submitted applications
for registration of their copyrights in additional versions of BusyBox
and seek leave to file an Amended Complaint setting forth details of
those registrations and applications for registration. Declaration of
Daniel B. Ravicher in Support of Plaintiffs' Motion to Amend Complaint,
Ex. 1 (proposed Amended Complaint) (Am. Compl.), ¶¶ 10, 21.

The SDNY bar should be ashamed of INCOMPETENT 'lawyers' such as Dan
Ravicher and all others SFLC 'lawyers' who already left the ship:

05/19/2011 197  MOTION for Michael Andrew Spiegel to Withdraw as
Attorney. Document filed by Software Freedom Conservancy, Inc..(Spiegel,
Michael) (Entered: 05/19/2011) 
06/10/2011 202  MOTION for Mishi Choudhary to Withdraw as Attorney.
Document filed by Erik Andersen, Software Freedom Conservancy,
Inc..(Ravicher, Daniel) (Entered: 06/10/2011) 
06/20/2011 205  MOTION for Aaron Kyle Williamson to Withdraw as
Attorney. Document filed by Erik Andersen, Software Freedom Conservancy,
Inc..(Ravicher, Daniel) (Entered: 06/20/2011) 

regards,
alexander.
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Re: Blowhard Bradley Kuhn and his fraud


Hyman Rosen wrote:
[...]
 Do you believe that at the conclusion of a case, one party pays
 the attorney fees of another unless a court instructs them not
 to do so? How odd.

http://reason.com/archives/1995/06/01/civil-suits

How could the middle class--not to mention the lower class--use the
courts if people who lost on a fluke had to pay their opponents' legal
fees? Wouldn't they drop even valid suits?

. . . 

Loser-pays is the standard in England, so it is sometimes known as the
English Rule. It is thus often spoken of as if it were some
Beefeaters-and-warm-beer eccentricity of the Sceptered Isle. But it has
no special connection with England. It has prevailed for millennia in
Europe, developing early in Roman law and spreading from there to the
civil law systems that evolved all over the continent and became
codified in France, Germany, and elsewhere around the time of Napoleon.
It even developed in the church courts. Scandinavia, like England, does
not trace its civil procedure to the Romans but nonetheless has
loser-pays.

regards,
alexander.

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Re: SFLC won EVERYTHING

Back in August 2011:

08/08/2011 211  OPINION AND ORDER: For the aforementioned reasons
stated above, plaintiffs' motion to hold WD in contempt of this Court's
earlier injunction against WDE pursuant to Rule 65( d) is granted.
Counsel is ordered to submit information regarding WD's ability to pay
and plaintiffs' lost profits within fifteen (15) days of the issuance of
this Opinion and Order. Plaintiffs are directed to submit a fee
application by the same date. The Clerk of the Court is directed to
close this motion (docket # 172). (Signed by Judge Shira A. Scheindlin
on 8/8/2011) (js) Modified on 8/9/2011 (jab). (Entered: 08/09/2011) 

08/08/2011 211  OPINION AND ORDER:

http://terekhov.de/211.pdf

Now in 2012:

01/05/2012 232  ORDER: The August 8, 2011 Order in this matter is
hereby vacated. The Clerk of the Court is directed to withdraw this
entry (Docket No. 211) from the docket. So Ordered (Signed by Judge
Shira A. Scheindlin on 1/5/2012) (js) (Entered: 01/06/2012)

01/05/2012 232  ORDER:

http://terekhov.de/232.pdf

Hmmm... sounds not good for GNUtards...

regards,
alexander.

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SFLC won a motion

http://terekhov.de/211.pdf

Because WD has not met its burden of demonstrating that its use of
the BusyBox software would not affect the value of plaintiffs' 
copyright...

What the FUCK Judge SCHEINDLIN is talking about regarding affect the 
value of plaintiffs' copyright...?

Hey dak and Hyman, any ideas? (%^$%*^%#$@@#(PO(*_)^%

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

BTW...

 06/30/2011 207  NOTICE OF APPEARANCE by David Leichtman on behalf of
 ZYXEL Communications Inc. (Leichtman, David) (Entered: 06/30/2011)

in contrast to (from PACER):


05/19/2011 197  MOTION for Michael Andrew Spiegel to Withdraw as
Attorney. Document filed by Software Freedom Conservancy, Inc..(Spiegel,
Michael) (Entered: 05/19/2011) 
06/10/2011 202  MOTION for Mishi Choudhary to Withdraw as Attorney.
Document filed by Erik Andersen, Software Freedom Conservancy,
Inc..(Ravicher, Daniel) (Entered: 06/10/2011) 
06/20/2011 205  MOTION for Aaron Kyle Williamson to Withdraw as
Attorney. Document filed by Erik Andersen, Software Freedom Conservancy,
Inc..(Ravicher, Daniel) (Entered: 06/20/2011) 

chuckles

regards,
alexander.

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Re: FSF associate membership


Ivan Shmakov wrote:
 
  marsup  arasu@gmail.com writes:
  On Jul 21, 6:53 pm, Ivan Shmakov i...@gray.siamics.net wrote:
 
 [â¦]
 
   -- FSF associate member #7257
 
   By the way what is all about FSF membership number?  I am curious to
   know for learning and contributing to FSF.
 
 This should be more on-topic for gnu.misc.discuss, so I'm
 cross-posting and setting Followup-To: there.  (Beware of the
 troll there, though; for some newsgroups, killfiles are a must.)
 
 The idea is to provide funding for the FSF (and thus, partly,
 for the GNU project.)  The âbasicâ associate membership is $120
 per year (or half that price for currently enrolled students.)
 
 To join, one can use the form at:
 
 https://my.fsf.org/associate/support_freedom/join_fsf
 
 To join and ask FSF to thank me for that:
 
 https://my.fsf.org/associate/support_freedom/join_fsf?referrer=7257
 
 --
 FSF associate member #7257

What percentage of collected funds is spend on writing code for the GNU
project and not on fat salaries to the FSF crooks not writing any code
for the GNU project?

regards,
alexander.

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Re: Stuttgart 21 protests


Alan Mackenzie wrote:
[...]
 Alex, this article in Stern was only about S21.  If the best that can be
 said about this disaster in the making is that alternatives are also bad,
 then it's best shut down right away.  Hopefully, this is what Deutsche
 Bahn is considering doing.

http://www.zeit.de/wirtschaft/unternehmen/2011-04/bahn-stuttgart-21-grube

Stuttgart 21 

Bahnchef Grube droht Grün-Rot mit Milliardenklage 

Eigentlich ist sich Bahnchef Grube zu 100 Prozent sicher: Stuttgart 21
kommt. Doch zugleich baut er vor, falls sich die neue Landesregierung
doch noch querstellt.

Seine Zuversicht will er sich nicht nehmen lassen: Der
Vorstandsvorsitzende der Deutschen Bahn, Rüdiger Grube, geht trotz des
Regierungswechsels in Baden-Württemberg fest davon aus, dass das
umstrittene Bahnprojekt Stuttgart 21 realisiert wird. Der neue Bahnhof
komme mit 100-prozentiger Sicherheit, sagte er der Bild am Sonntag.

Doch so ganz traut Grube der neuen grün-roten Führung in Stuttgart dann
wohl doch nicht: Sein Unternehmen kalkuliert auch mit einem Scheitern
des Milliardenprojekts  und droht der neuen Landesregierung in diesem
Fall mit Regressansprüchen.
 
Zur Begründung führte der Konzernchef an, dass es mit dem Land
wasserdichte Verträge gebe. Und wenn dort jemand meint, dass er aus dem
Projekt aussteigen möchte, soll er das allen Partnern sagen, übrigens
auch wohin wir die Rechnung schicken sollen. Die Forderungen würden
sich dann auf rund 1,5 Milliarden Euro belaufen. Denn im Falle eines
Ausstiegs müsse sich die Bahn dieses Geld wiederholen. Er sei als
Vorstandsvorsitzender einer Aktiengesellschaft schlichtweg dazu
verpflichtet, sagte Grube.
 
Derzeit ist allerdings noch völlig offen, wie es mit Stuttgart 21
weitergeht. Darüber ist sich auch die neue Landesregierung nicht ganz
einig: Die Grünen unter Führung des designierten Regierungschefs
Winfried Kretschmann sind gegen den neuen Bahnhof, die SPD dagegen
befürwortet einen Weiterbau. Beide verweisen nun auf den anstehenden
Stresstest, deren Ergebnisse im Sommer vorliegen sollen. Dann könnte es
auch zu einem Volksentscheid kommen.
 
Grube sah dem gelassen entgegen. Wenn wir uns nicht sicher wären, dass
der Bahnhof den Test besteht, hätten wir uns auf das Thema nicht
eingelassen. Wir stehen weiterhin voll zu Stuttgart 21. Der Bahnchef
versprach, eventuelle Defizite beheben zu wollen. Der Stresstest wird
die Leistungsfähigkeit des tiefer gelegten Bahnhofs nachweisen. Sollten
entgegen unseren Erwartungen Defizite beim Stresstest auftreten, werden
wir die nötigen Veränderungen vornehmen.
 
Zudem bewarb Grube das Bahnprojekt noch einmal unter Verweis auf
mangelnde Optionen. Was wäre denn die Alternative? Der Weiterbetrieb
eines völlig veralteten Bahnhofs mit einer Technologie, in die seit mehr
als zehn Jahren wegen des Neubauprojekts nur das Nötigste investiert
worden ist? Das kann niemand wollen. Die Kritiker bemängeln an
Stuttgart 21 dagegen zu hohe Kosten bei zu geringer Leistungsfähigkeit.
 
Lesen Sie hier mehr aus dem Ressort Unternehmen. 

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


David Kastrup wrote:
 
 Alexander Terekhov terek...@web.de writes:
 
  Just in:
 
  04/26/2011 194  ENDORSED LETTER addressed to Judge Shira A. Scheindlin
  from Emmett J. McMahon, dated 4/25/2011, re: Counsel for the defendant
  Best Buy Co., writes to request a pre-motion conference regarding a
  motion to strike Plaintiffs' claim for actual damages and any
  additional profits of [Best Buy] incurred as the result of
  infringement. ENDORSEMENT: Request granted. A premotion conference will
  be held on May 6 at 2:30. So Ordered. (Pre-Motion Conference set for
  5/6/2011 at 02:30 PM before Judge Shira A. Scheindlin) (Signed by Judge
  Shira A. Scheindlin on 4/25/2011) (lnl) (Entered: 04/26/2011)
 
  The letter:
 
  http://www.terekhov.de/194.pdf
 
  Best Buy says that Plaintiffs have suffered no damages at all.
 
  (And rightly so.)
 
 That's the there are no damages when stealing from a charity since they
 are not intending to make a profit anyway argument.  Let's see whether
 the judge buys that.

Stealing something (including intangibles) with positive market value
results in damages (charity or no charity is irrelevant).

Best Buy says that market value of Andersen's contributions to BusyBox
v0.60.3 is ZERO because the copyright owners in the entire BusyBox
program have intentionally made it freely available (zero price to
obtain) to anyone and his dog (and no action by Best Buy has precluded
anyone from accessing the BusyBox program).

It's really simple, dak.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


RJack wrote:
 
 SFC and Erik Andersen's motion to join Westinghouse Digital Electronics,
 LLC (WDE) as a defendant has been DENIED.
 
 Judge Scheindlin:
 
 Because plaintiffs have failed to prove the crucial factor of
 inadequate consideration, their de facto merger and mere continuation
 theories of successor liability must fail.
 
 V. CONCLUSION
 
 For the foregoing reasons, plaintiffs' motion to join WD is denied. The
 Clerk of the Court is directed to close this motion (Docket No. 133).

Has WDE already filed a motion for the recovery of attorney fees and
costs?

GNUtards, donate to SF[L]C!!

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

Just in:

04/26/2011 194  ENDORSED LETTER addressed to Judge Shira A. Scheindlin
from Emmett J. McMahon, dated 4/25/2011, re: Counsel for the defendant
Best Buy Co., writes to request a pre-motion conference regarding a
motion to strike Plaintiffs' claim for actual damages and any
additional profits of [Best Buy] incurred as the result of
infringement. ENDORSEMENT: Request granted. A premotion conference will
be held on May 6 at 2:30. So Ordered. (Pre-Motion Conference set for
5/6/2011 at 02:30 PM before Judge Shira A. Scheindlin) (Signed by Judge
Shira A. Scheindlin on 4/25/2011) (lnl) (Entered: 04/26/2011) 

The letter:

http://www.terekhov.de/194.pdf

Best Buy says that Plaintiffs have suffered no damages at all.

(And rightly so.)

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud


David Kastrup wrote:
 
 Alexander Terekhov terek...@web.de writes:
 
  David Kastrup wrote:
 
  Alexander Terekhov terek...@web.de writes:
 
   Just in:
  
   04/26/2011 194  ENDORSED LETTER addressed to Judge Shira A. Scheindlin
   from Emmett J. McMahon, dated 4/25/2011, re: Counsel for the defendant
   Best Buy Co., writes to request a pre-motion conference regarding a
   motion to strike Plaintiffs' claim for actual damages and any
   additional profits of [Best Buy] incurred as the result of
   infringement. ENDORSEMENT: Request granted. A premotion conference will
   be held on May 6 at 2:30. So Ordered. (Pre-Motion Conference set for
   5/6/2011 at 02:30 PM before Judge Shira A. Scheindlin) (Signed by Judge
   Shira A. Scheindlin on 4/25/2011) (lnl) (Entered: 04/26/2011)
  
   The letter:
  
   http://www.terekhov.de/194.pdf
  
   Best Buy says that Plaintiffs have suffered no damages at all.
  
   (And rightly so.)
 
  That's the there are no damages when stealing from a charity since they
  are not intending to make a profit anyway argument.  Let's see whether
  the judge buys that.
 
  Stealing something (including intangibles) with positive market value
  results in damages (charity or no charity is irrelevant).
 
  Best Buy says that market value of Andersen's contributions to BusyBox
  v0.60.3 is ZERO because the copyright owners in the entire BusyBox
  program have intentionally made it freely available (zero price to
  obtain) to anyone and his dog
 
 Like a soup kitchen.

Your attempt to establish analogy regarding BusyBox and 

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

is utterly moronic, dak.

regards,
alexander.

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RMS rewriting history (rewriting book about himself)

Original:

http://oreilly.com/openbook/freedom/ch09.html

Mark Fischer, a Boston attorney specializing in intellectual-property
law, recalls discussing the license with Stallman during this period.
Richard had very strong views about how it should work, Fischer says,
He had two principles. The first was to make the software absolutely as
open as possible. The second was to encourage others to adopt the same
licensing practices. 

Encouraging others to adopt the same licensing practices meant closing
off the escape hatch that had allowed privately owned versions of Emacs
to emerge. To close that escape hatch, Stallman and his free software
colleagues came up with a solution: users would be free to modify GNU
Emacs just so long as they published their modifications. In addition,
the resulting derivative works would also have carry the same GNU
Emacs License.

The revolutionary nature of this final condition would take a while to
sink in. At the time, Fischer says, he simply viewed the GNU Emacs
License as a simple contract. It put a price tag on GNU Emacs' use.
Instead of money, Stallman was charging users access to their own later
modifications. That said, Fischer does remember the contract terms as
unique.

New version:

http://static.fsf.org/nosvn/faif-2.0.pdf

Mark Fischer, a Boston copyright attorney who initially provided
Stallman's legal advice, recalls discussing the license with Stallman
during this period. Richard had very strong views about how it should
work, Fischer says, He had two principles. The first was to make the
software absolutely as open as possible. (By the time he said this,
Fischer seems to have been inuenced by open source supporters; Stallman
never sought to make software open.) The second was to encourage
others to adopt the same licensing practices.

The requirements in the license were designed for the second goal. The
revolutionary nature of this final condition would take a while to sink
in. At the time, Fischer says, he simply viewed the GNU Emacs license as
a simple trade. It put a price tag on GNU Emacs' use. Instead of money,
Stallman was charging users access to their own later modifications.
That said, Fischer does remember the license terms as unique.

chuckles

regards,
alexander.

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Re: Stuttgart 21 protests

2011-04-09 Thread Alexander Terekhov

Alan Mackenzie wrote:

Hi, Alex!

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

Alan Mackenzie wrote:

[... S21 ...]

I'd say about 50-50. Incidentally, are you aware that Deutsche Bahn
(German Railways) have put the project on hold for now?

That was done to limit the amount of monetary damages (the current
estimate is 1.5 billion euros at minimum) the land will have to pay
Deutsche Bahn if the new government will be moronic enough to actually
achieve cancellation of S21.

Or was it? Thursday's Stern describes a leaked 130 page DB document
which outlines the project risks, and they are very many indeed. A quick

http://www.stuttgarter-zeitung.de/inhalt.studie-zu-stuttgart-21-bahn-listet-121-risiken-auf.9621a5a1-af89-4771-8ca1-0e5405bc7703.html

Hm, wenn ich mich recht entsinne, ist genau das in der Schlichtung
geschehen. Möglicherweise haben Sie diese nicht verfolgt, oder Sie
leugnen die dort vorgetragenen Herangehensweisen. Der Vorwurf, dass
Risiken bagatellisiert oder geleugnet wurden, ist jedoch schlicht
falsch. Möglicherweise kam es da zu anderen Bewertungen als Sie sie
vornehmen würden. Das ist jedoch Auslegungssache und wird sicher von
jeder Seite anders bewertet. Wenn überhaupt jemand leugnet und
verschleiert, dann ist es doch die K21-Fraktion, die strikt behauptet
(Palmer vorneweg) bei K21 würde es keinerlei Risiko für die
Mineralquellen gäben (Rosensteintunnel), müßte nicht durch Gipskeuper
gebaut werden (Fildertunnel), müßten keine Bäume gefällt werden (Einöd),
würden die Kosten nicht aus dem Ruder laufen können (Preisteigerungen
durch 20-30 Jahre Bauzeit), würden keine Verkehrsbehinderung in der
Stadt durch Bauarbeiten auftreten (Feuerbachtunnel), wären alle Tunnel
viel billiger aber sicherer (Hermannsche NBS-Kalkulation mal bitte mit
stockerschen Sicherheitsauflagen auf K21 anwenden) und last but not
least, ein ITF wäre für Stuttgart sinnvoll. _
Sorry, aber bei soviel Leugnungsbereitschaft, scheinen mir die
Ingenieure der Bahnseite wesentlich seriöser an die Risiken ran zu
gehen. Freundlichst

regards,
alexander.

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Re: Stuttgart 21 protests

2011-03-31 Thread Alexander Terekhov


Alan Mackenzie wrote:

[... S21 ...]

 I'd say about 50-50.  Incidentally, are you aware that Deutsche Bahn
 (German Railways) have put the project on hold for now?

That was done to limit the amount of monetary damages (the current
estimate is 1.5 billion euros at minimum) the land will have to pay
Deutsche Bahn if the new government will be moronic enough to actually
achieve cancellation of S21. I hope they are not that stupid.

regards,
alexander.

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Re: Stuttgart 21 protests

2011-03-31 Thread Alexander Terekhov


Alan Mackenzie wrote:
[...]
 The project was sharply criticised by the conciliator, Heiner Geissler,
 in every aspect.  He made many recommendations for improvement, and in
 the end said the only reason he was saying the project should go ahead
 was the cost of stopping it.

Eh?

http://www.youtube.com/watch?v=vdtwcKPwlFk
http://www.spiegel.de/video/video-1096777.html

regards,
alexander.

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Re: 9th Cir. License Primer


RJack wrote:
[...]
 Now, the SFLC utterly ignores the circuit precedent and claims:
 
 Further, once Best Buy made a distribution of BusyBox that did not
 comply with the license terms, the license terminated, and therefore any
 further act of copying or distributing BusyBox by Best Buy (even if in
 compliance with the license) is without Andersen's permission.

This is well known Stallman/FSF/SFLC moronity regarding termination 
of licensing contracts due to (material) breach.

To wit:

http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF

http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF
(See 6 Contract Law Issues)

Automatic termination of the license in case of breach of license
terms (condition subsequent)

- In a contract the termination is ultima ratio and needs prior 
notification

and

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaimvol=1999/97476c

In addition, prior to the filing of the infringement suit, RT Graphics
never took affirmative steps to terminate the license which it had
granted. This court agrees with other courts which have previously held
that such a measure is necessary on the part of the copyright holder. In
Graham v. James, the Court of Appeals for the Second Circuit stated that
[e]ven assuming [the publisher] materially breached the licensing
agreement and that [the programmer] was entitled to rescission, such
rescission did not occur automatically without some affirmative steps on
[the programmer's] part. 144 F.3d at 237-38. In Maxwell, the Court of
Appeals for the Eleventh Circuit expressed a similar view:

[E]ven assuming arguendo that the Miracle's conduct constituted a
material breach of the parties' oral understanding, this fact alone
would not render the Miracle's playing of the song pursuant to
[Albion's] permission a violation of [Albion's] copyright. Such a breach
would do no more than entitle [Albion] to rescind the agreement and
revoke [his] permission to play the song in the future, actions [he] did
not take during the relevant period.

Like the programmer in Graham v. James and the songwriter in Maxwell,
RT Graphics never formally withdrew previously-given permission which
allowed the alleged infringer to use the copyrighted material. See also
Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996)
(even assuming that movie producer materially breached licensing
agreement to use composer's song in film, composer never attempted to
exercise any right of rescission and summary judgment of
noninfringement of copyright was proper); Cities Serv. Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) (A material breach
does not automatically and ipso facto end a contract. It merely gives
the injured party the right to end the agreement; . . . .). In the
case at bar, the court finds that there was no rescission of the
contract by plaintiff. Moreover, the Postal Service's conduct was
insufficient to justify any rescission which could have taken place,
and did not indicate a repudiation of the licensing agreement.
Accordingly, the court holds that the Use Agreement was at all times
valid and enforceable during the course of this dispute, and any
remedy which the plaintiff may seek for its failure to receive credit
cannot properly be based on a theory of copyright infringement. 

BTW, even assuming successful rescission/termination with affirmative
steps on the licensor part, what prevents the former licensee from
entering into licensing relationship anew?

The situation is no different when Microsoft would terminate my
Windows 7 EULA and I just go and buy another copy and create another
EULA relationship instead of terminated one.

So just take a license, breach it, wait for termination, take another
license, breach it, wait for termination... Rinse lather repeat.

To prevent that, the license contract must specify a condition 
precedent regarding previously terminated licenses and condition 
the new grant on successfull resolution of the previous breach 
dispute.

regards,
alexander.

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Re: 9th Cir. License Primer


David Kastrup wrote:
[...]
 The respective chances for success of copyright enforcement in court 
 are what causes the FSF to get copyright assignments ... 

Dear dak, you know quite well that Stallman has no balls to sue for
copyright infringement because Stallman is in business of giving
Copyright vs. Community speeches. Imagine the publicity... BREAKING
NEWS: Copyright IS NOT AGAINST Community anymore, Stallman finally buys
into copyright, hallelujah!!!

regards,
alexander.

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Re: 9th Cir. License Primer


David Kastrup wrote:
[...]
 What rock have you been living under?  The whole point of the GPL (as
 opposed to, say, BSD style licenses) is that it is firmly rooted in
 copyright ...

In context, copyright means that the owner has exclusive right to 
copy in order to sell (permissions to make) copies verbatim and 
copies of derivative works of his work without interference from 
http://en.wiktionary.org/wiki/freeloaders . . . In contrast, the
GPL means . . .

What rock have you been living under, silly dak?

regards,
alexander.

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Re: Stuttgart 21 protests

Hey Mackenzie, 

Alexander Terekhov wrote:
 
 Alan Mackenzie wrote:
 [...]
  You agree with what you like, Alex.  I have talked extensively with
  eye-witnesses, including one who was on the demonstration the police
  attacked by shooting people in the face with water canons on 30th
 
 Oh c'mon everybody agrees that police attack was unwarranted. Many
 people won't vote for the currently governing CDU party next March due
 to that embarrassment and so be it.

Voters have spoken: Due to that and other embarrassments, after 
almost sixty years of ruling over here, the CDU party (its coalition) 
won't govern the land in the next five years... complete refresh of 
land government.

Alan, I wish you the same for your Nuremberg land. ;-)

regards,
alexander.

Plaintiff Erik Andersen is a work-from-home father who has gifted 
to the world software underlying a significant body of consumer
electronics. ROFL
 -- SFLC crooks Ravicher, Williamson, Spiegel

P.S. I bet 50 EUR that S21 (with plus) will stay, what is your play?

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Re: Blowhard Bradley Kuhn and his fraud

2011-03-25 Thread Alexander Terekhov

LMAO!

from pacer:

03/22/2011 191  REPLY MEMORANDUM OF LAW in Support re: 172 MOTION
Finding of Contempt re: 171 MOTION Finding of Contempt... Document filed
by Erik Andersen, Software Freedom Conservancy, Inc.. (Ravicher, Daniel)
(Entered: 03/22/2011) 

03/23/2011 192  ENDORSED LETTER addressed to Judge Shira A. Scheindlin
from David Leichtman dated 3/23/2011 re: Requesting that the Reply and
Kuhn Declaration be stricken, or in the alternative, that the Court
consider Best Buy's responses to these new theories and arguments.
ENDORSEMENT: Defendant's request is granted. The Court will consider
Best Buy's response to the new issues raised in Plaintiffs' Reply, as
set forth in this letter. So Ordered. (Signed by Judge Shira A.
Scheindlin on 3/23/2011) (jpo) (Entered: 03/23/2011) 

http://www.terekhov.de/191.pdf
http://www.terekhov.de/192.pdf

regards,
alexander.

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Re: 9th Cir. License Primer

2011-03-24 Thread Alexander Terekhov

As they say:

The GPL Is a License, not a Contract.

LMAO!

Seriously, I am very disappointed that Best Buy did not raise the issue
of copyright v. contract breach thus far. The language of Best Buy's
latest filing in 1:09-cv-10155-SAS Software Freedom Conservancy, Inc. v.
Best Buy Co., Inc. et al almost sounds that Best Buy buys into GPL
condition moronity... I suppose that they are sure that they can win
even under that condition so to speak. We'll see.

RJack wrote:

The Ninth Circuit Court of Appeals published a decision on Dec. 10th,
2010, MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT that could serve as an
excellent primer for open source license drafters.

https://docs.google.com/leaf?id=0BwLbiGagMEFMODNkNjdlYjEtNDJkZC00Yjc3LTg3NmQtY2UyMjQwMjJhOGVi

This decision is *REQUIRED READING* for the Free Software Foundation!

... [7] A copyright owner who grants a nonexclusive, limited
license ordinarily waives the right to sue licensees for copyright
infringement, and it may sue only for breach of contract. Sun I, 188
F.3d at 1121 (internal quotations omitted). However, if the licensee
acts outside the scope of the license, the licensor may sue for
copyright infringement. Id. (citing S.O.S., Inc. v. Payday, Inc., 886
F.2d 1081, 1087 (9th Cir. 1989)). Enforcing a copyright license raises
issues that lie at the intersection of copyright and contract law. Id.
at 1122.

[8] We refer to contractual terms that limit a licenses scope as
conditions, the breach of which constitute copyright infringement. Id.
at 1120. We refer to all other license terms as covenants, the breach
of which is actionable only under contract law. Id. We distinguish
between conditions and covenants according to state contract law, to the
extent consistent with federal copyright law and policy. Foad Consulting
Group v. Musil Govan Azzalino, 270 F.3d 821, 827 (9th Cir. 2001)...

[9] A Glider user commits copyright infringement by playing WoW while
violating a ToU term that is a license condition. To establish copyright
infringement, then, Blizzard must demonstrate that the violated term
ToU § 4(B) is a condition rather than a covenant. Sun I, 188 F.3d at
1122. Blizzards EULAs and ToUs provide that they are to be interpreted
according to Delaware law. Accordingly, we first construe them under
Delaware law, and then evaluate whether that construction is consistent
with federal copyright law and
policy. A covenant is a contractual promise, i.e., a manifestation of
intention to act or refrain from acting in a particular way, such
that the promisee is justified in understanding that the promisor
has made a commitment. See Travel Centers of Am. LLC v. Brog, No.
3751-CC, 2008 Del. Ch. LEXIS 183, *9 (Del. Ch. Dec. 5, 2008); see also
Restatement (Second) of Contracts § 2 (1981). A condition precedent is
an act or event that must occur before a duty to perform a promise
arises. AES P.R., L.P. v. Alstom Power, Inc., 429 F. Supp. 2d 713, 717
(D. Del. 2006) (citing Delaware state law); see also Restatement
(Second) of Contracts § 224. Conditions precedent are disfavored
because they tend to work forfeitures. AES, 429 F. Supp. 2d at 717
(internal citations omitted). Wherever possible, equity construes
ambiguous contract provisions as covenants rather than conditions. See
Wilmington Tr. Co. v. Clark, 325 A.2d 383, 386 (Del. Ch. 1974). However,
if the contract is unambiguous, the court construes it according to its
terms. AES, 429 F. Supp. 2d at 717 (citing 17 Am. Jur. 2d Contracts §
460 (2006)).

[10] Applying these principles, ToU § 4(B)(ii) and (iii)s prohibitions
against bots and unauthorized third-party software are covenants rather
than copyright-enforceable conditions. See Greenwood v. CompuCredit
Corp., 615 F.3d 1204, 1212, (9th Cir. 2010) ([H]eadings and titles are
not meant to take the place of the detailed provisions of the text, and
. . . the heading of a section cannot limit the plain meaning of the
text. (quoting Bhd. of R.R. Trainmen v. Balt. Ohio R.R.,
331 U.S. 519, 52829 (1947))). Although ToU § 4 is titled, Limitations
on Your Use of the Service, nothing in that section conditions
Blizzards grant of a limited license on players compliance with ToU §
4s restrictions. To the extent that the title introduces any ambiguity,
under Delaware law, ToU § 4(B) is not a condition, but is a contractual
covenant. Cf. Sun Microsystems, Inc. v. Microsoft Corp., 81 F. Supp. 2d
1026, 1031-32 (N.D. Cal. 2000) (Sun II) (where Sun
licensed Microsoft to create only derivative works compatible with other
Sun software, Microsofts compatibility obligations
were covenants because the license was not specifically conditioned on
their fulfillment).

To recover for copyright infringement based on breach of a license
agreement, (1) the copying must exceed the scope of
the defendants license and (2) the copyright owners complaint
must be grounded in an exclusive

Re: 9th Cir. License Primer

2011-03-24 Thread Alexander Terekhov


RJack wrote:
[...]
 The GPL's flaw is obvious. Neither including (i) complete... source
 code... nor (ii) a ...written offer... is grounded in one of the
 specific exclusive rights enumerated in the Copyright Act, thus
 these acts comprise contractual covenants and *cannot* give rise to an
 infringement claim.

+ 1

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-03-23 Thread Alexander Terekhov


RJack wrote:
 
 On 3/22/2011 7:43 AM, RJack wrote:
  On 3/22/2011 6:51 AM, Alexander Terekhov wrote:
 
  RJack wrote:
 
  Best Buy Inc. has just filed a 28 page (available on PACER)
  Memorandum of Law in Opposition to Plaintiff's Motion for
  Preliminary Injunction.
 
  Let the the fireworks begin!
 
  SFLC's exciting reply:
 
  http://www.terekhov.de/188.pdf
 
 The SFLC claimed in it's Complaint against Best Buy Inc. that:
 
 On information and belief, each Defendant has distributed firmware 
 embedded in electronic products or by itself that contains BusyBox or a
 derivative work of BusyBox.
 
 Next, in the Motion for Preliminary Injunction the SFLC claims:
 
 Further, version 1.2.1 is unquestionably a derivative work of version
 0.60.3, as version 1.2.1 was indisputably based on and is substantially
 similar to version 0.60.3, so Best Buy's distribution of version 1.2.1
 is itself a violation of Andersen's exclusive right to make and
 distribute derivative works of his registered copyright. 17 U.S.C. § 106
 (2),(3).
 
 So... we see that Andersen's work unquestionably involves a derivative
 work of the original BusyBox that was written by Bruce Perens...
 *except* when pressed on Andersen's valid copyright registration, the
 SFLC claims a few paragraphs later that:
 
 Not only did Andersen write from scratch a significant portion of the
 code added between the time he left Lineo and the release of version
 0.60.3, he is also entitled to a copyright for his direction and
 organization of BusyBox's development because the Copyright Act protects
 a work formed by the collection and assembling of preexisting materials
 or of data that are selected, coordinated, or arranged in such a way
 that the resulting work as a whole constitutes an original work of
 authorship ... . 17 U.S.C. §§ 101, 103; Feist Pub'lns, Inc. v. Rural
 Tel. Serv. Co., 499 U.S. 340, 362 (1991).
 
 SURPRISE!!! SURPRISE!!! Andersen's registered work has now magically
 morphed into a collective work. Not only is the registered BusyBox
 work a moving target -- it's moving at lightspeed.
 
 If I were Erik Andersen I would be moving at light speed too -- Best Buy
 Inc. is about to take a large bite out of his ass.

I bet that SFLC legal beagles will suggest that what they actually mean
is that Andersen's work in 1.2.1 is a derivative collective work (a
derivative selection of material) based on his original collective work
in 0.60.3.

Of course the problem is that whatever alleged Andersen's work of
whatever type and scope is not properly registered (and even not
identified in the evidence before the court to date)...

As for derivative v. collective works, SFLC legal beagles never groked
the difference in concepts:

http://gplv3.fsf.org/denationalization-dd2.html

Works Based On Other Works

Although the definition of ``work based on the Program'' made use of a
legal term of art, ``derivative work,'' peculiar to US copyright law, we
did not believe that this presented difficulties as significant as those
associated with the use of the term ``distribution.'' After all,
differently-labeled concepts corresponding to the derivative work are
recognized in all copyright law systems. That these counterpart concepts
might differ to some degree in scope and breadth from the US derivative
work was simply a consequence of varying national treatment of the right
of altering a copyrighted work. 

Ironically, the criticism we have received regarding the use of
US-specific legal terminology in the ``work based on the Program''
definition has come not primarily from readers outside the US, but from
those within it, and particularly from members of the technology
licensing bar. They have argued that the definition of ``work based on
the Program'' effectively misstates what a derivative work is under US
law, and they have contended that it attempts, by indirect means, to
extend the scope of copyleft in ways they consider undesirable. They
have also asserted that it confounds the concepts of derivative and
collective works, two terms of art that they assume, questionably, to be
neatly disjoint under US law. 

We do not agree with these views...

They simply do not agree with US Congress:

(HOUSE REPORT NO. 94-1476)

Between them the terms ''compilations'' and ''derivative works'' 
which are defined in section 101 comprehend every copyrightable 
work that employs preexisting material or data of any kind. There 
is necessarily some overlapping between the two, but they basically 
represent different concepts. A ''compilation'' results from a 
process of selecting, bringing together, organizing, and arranging 
previously existing material of all kinds, regardless of whether 
the individual items in the material have been or ever could have 
been subject to copyright. A ''derivative work,'' on the other 
hand, requires a process of recasting, transforming, or adapting 
''one or more preexisting works''; the ''preexisting work'' must 
come within the general

Re: Blowhard Bradley Kuhn and his fraud

2011-03-22 Thread Alexander Terekhov


RJack wrote:
 
 Best Buy Inc. has just filed a 28 page (available on PACER) Memorandum
 of Law in Opposition to Plaintiff's Motion for Preliminary Injunction.
 
 Let the the fireworks begin!

SFLC's exciting reply:

http://www.terekhov.de/188.pdf

1. They don't object Best Buy claim that SFC 'agent' has no standing at
all. Ciao SFC plaintiff. Ha ha.
 
2. Regarding the bogus copyright registration and lack of identification
of Andersen's actual work, the answer is basically it's all in the CVS
and Subversion logs so go dig it out yourself dear copyright office and
defendants. Ha ha.

3. The rights under the GPL really really automatically terminate on a
slightest breach with no way to cure and the only way out is to beg for
reinstantiation of rights. Ha ha.

4. The plaintiffs are really really irreparably harmed. LOL.

5. Dear judge, free us poor plaintiffs from the obligation to post the
security bond... LMAO.

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-03-22 Thread Alexander Terekhov


RJack wrote:
 
 On 3/22/2011 6:51 AM, Alexander Terekhov wrote:
 
  RJack wrote:
 
  Best Buy Inc. has just filed a 28 page (available on PACER)
  Memorandum of Law in Opposition to Plaintiff's Motion for
  Preliminary Injunction.
 
  Let the the fireworks begin!
 
  SFLC's exciting reply:
 
  http://www.terekhov.de/188.pdf
 
  1. They don't object Best Buy claim that SFC 'agent' has no standing
  at all. Ciao SFC plaintiff. Ha ha.
 
  2. Regarding the bogus copyright registration and lack of
  identification of Andersen's actual work, the answer is basically
  it's all in the CVS and Subversion logs so go dig it out yourself
  dear copyright office and defendants. Ha ha.
 
  3. The rights under the GPL really really automatically terminate on
  a slightest breach with no way to cure and the only way out is to beg
  for reinstantiation of rights. Ha ha.
 
  4. The plaintiffs are really really irreparably harmed. LOL.
 
  5. Dear judge, free us poor plaintiffs from the obligation to post
  the security bond... LMAO.
 
 The SFLC is utterly clueless concerning the registration of derivative
 works. SFLC says:
 
 The first version of BusyBox Andersen released
 after leaving Lineo was version 0.60.3. That
 version contained 8,897 lines of brand new code
 added by Andersen after leaving Lineo. This new
 code added functionality and improvements to the
 stability of BusyBox's core features. Williamson
 Decl. Ex. A at 274:5 276:24. A large portion of
 this code, 5,794 lines, he wrote entirely by
 himself.
 
 So... we are now down to 5,794 lines of code of unregistered,

Actually we are now down to 3,078 lines, see below.

 unidentified lines of code -- not BusyBox  0.60.3. Remember

Note that the line count includes both '.h'-headers and '.c'-files. 

Headers contain zilch of copyrightable expression.

Note also that Best Buy distributed version 1.2.1 and not 0.60.3.

From Kuhn's declaration:

I inspected the commit logs stored at http://www.busybox.net to
determine Erik Andersen's recorded contributions to BusyBox version
0.60.3 that were still present in BusyBox version 1.2.1. I found that of
the 8,868 lines of code Andersen added or was the last to edit in
BusyBox version 0.60.3, 4,884 remain unchanged in BusyBox version 1.2.1.
I also found that of the 5,794 lines of code that Andersen added or was
the last to edit in BusyBox version 0.60.3, excluding situations where
Andersen noted in the log that he was contributing a patch written in
part or in whole by another developer, 3,078 lines of code remain
unchanged in BusyBox version 1.2.1. In particular, I ran a computer
program that processed the author data associated with each line of code
contained in BusyBox version 1.2.1 files ending in .c or .h applying
similar criteria as described in ¶ 6 and ¶ 7 of this declaration, and
finding those lines where the author and timestamp data had not changed
between version 0.60.3 and version 1.2.1.

 the SFLC Complaint?
 
 BusyBox is a single computer program that comprises a set of computing
 tools and optimizes them for computers with limited resources,
 such as cell phones, PDAs, and other small, specialized electronic devices.
 
 Andersen was registering ...a single computer program..., *except* it
 is now ...5,794 lines... of code.
 
 Best Buy anticipated this ploy:
 
 [n.11] If Mr. Andersen were to later claim that he is trying to enforce
 only his personal contributions to v.0.60.3, those contributions have
 not been defined, they are not before the Court, and they are not
 alleged to be in the accused devices.
 
 Sincerely,
 RJack :)

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-03-10 Thread Alexander Terekhov

On pacer:

03/09/2011 185  MEMORANDUM OF LAW in Opposition re: 172 MOTION Finding 
of Contempt re: 171 MOTION Finding of Contempt... Document filed by 
Westinghouse Digital, LLC. (Kazan, Barry) (Entered: 03/09/2011) 

-
I.   Background

II.  Westinghouse Digital Is Not In Contempt Of The Courts Injunction 
 Because The Accused Conduct Is Not Copyright Infringement And 
 Because The Injunction Against Mora Does Not Apply To Westinghouse 
 Digital

  A. The posting of Moras DTV firmware on the web is not copyright 
 infringement because it is required under federal law and an Order 
 of the Federal Communications Commission 

  B. The injunction against Mora does not apply to non-party 
 Westinghouse Digital because Westinghouse Digital has neither 
 abetted nor is legally identified with Mora

  C. Westinghouse Digital is not the successor to Mora for purposes 
 of the injunction under federal common law

III. Conclusion 
-

http://www.terekhov.de/185.pdf

Oh mighty, mighty GPL...

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-03-08 Thread Alexander Terekhov


RJack wrote:
 
 Best Buy Inc. has just filed a 28 page (available on PACER) Memorandum
 of Law in Opposition to Plaintiff's Motion for Preliminary Injunction.

How much is that in attoney's fees and costs? 

Judging from the JMRI case it's quite a penny:

http://jmri.sourceforge.net/k/docket/111.pdf

In this matter, Defendants Katzer and KAM declare that they have incurred 
$20,782.58,
inclusive of $450.68 in expenses as a result of researching, filing and arguing 
the anti-SLAPP
special motion to strike. (Declaration of R. Scott Jerger in support of his 
motion for attorneys
fees (Jerger Decl.), ¶ 3.) Counsel explains that he spent a total of 59.8 
hours preparing the
motion papers related to the special motion to strike. (Id., ¶ 4(a)-(c).) He 
also contends that he
spent a total of 28.4 hours preparing for and attending the court hearing on 
the special motion
and further alleges that such time was spent exclusively on this motion, and 
not the other
pending motions or the case management conference. (Id., ¶ 4(d); Defendants 
Katzer and
KAMs Reply to Plaintiffs Objections at 2.) The Court finds this additional 
court attendance
estimate to be excessive and reduces the estimate for time spent on the hearing 
of the special
motion to 4 hours. Therefore, the Court awards fees to counsel for Katzer and 
KAM in the
amount of $14,036 (for 63.8 hours at an hourly rate of $220). The Court also 
awards costs in
the amount of $450.68. Therefore, the total amount owing to Katzer and KAM is 
$14,486.68.

Additionally, Defendant Russell declares that he has incurred a total of 
$43,491.25 in
attorneys fees as a result of researching, filing and arguing the anti-SLAPP 
special motion to
strike. (Declaration of David M. Zeff in support of award of attorneys fees 
(Zeff Decl.), ¶ 6;
Defendant Russells Reply to Plaintiffs Objection at 5.) This estimate 
includes 84.55 hours of
time at a rate of $235 per hour for Mr. Moores services and 67.35 hours at a 
rate of $300 per
hour for Mr. Zeffs services, plus an additional 4.2 hours billed by Mr. Moore 
and an additional
8.1 hours billed by Mr. Zeff in connection with reviewing Plaintiffs 
objections and researching
and drafting a reply. (Zeff Decl., ¶¶ 2, 5; Reply at 5; Declaration of David M. 
Zeff in reply to
objections, ¶¶ 4, 5.) Mr. Zeff also explains that he includes some, but not 
all, of the time he and
Mr. Moore spent on the motion to dismiss because some of the substantive issues 
in the special
motion to strike overlap. The Court finds this unpersuasive as the motion to 
dismiss was a
stand-alone motion and only fees incurred due to the filing of the special 
motion to strike are
recoverable. See Lafayette Morehouse, Inc., 39 Cal. App. 4th at 1383. The Court 
also finds it
unreasonable that two attorneys, billing at comparable rates, were necessary to 
complete the
same tasks it took a single attorney to complete for Defendants Katzer and KAM. 
Therefore,
the Court will only take into consideration the fees incurred by Mr. Zeff and 
reduce that amount
by twenty-five percent because the Court cannot award fees for time incurred on 
unrelated
motions. Therefore, the total amount owing to Defendant Russell is $16,976.25 
(75.45 hours
reduced by 25% at an hourly rate of $300).

Here's another example:

http://www.pryorcashman.com/f-18.html

Pannonia Farms Inc. v. USA Cable, 2004 U.S. Dist. LEXIS 23015 (S.D.N.Y. 2004), 
affd, 426 
F.3d 650 (2d Cir. 2005): Obtained summary judgment dismissing claims involving 
television 
motion picture A Case of Evil and ownership of rights to fictional characters 
Sherlock 
Holmes and Dr. Watson; affirmed on appeal. Also obtained award of over $100,000 
in 
attorneys fees and an additional $25,000 in sanctions against plaintiffs 
counsel. 

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-02-28 Thread Alexander Terekhov

SFLC lost $455 (actually much more) for nothing.

Alexander Terekhov wrote:
 
 Hilarious!!!
 
  http://www.terekhov.de/159.pdf
 
  Plaintiffs' motion to join respondents is denied as to CMA. Plaintiffs'
  motion to join WD is denied, without prejudice subject to Plaintiff's
  decision to refile following an evidentiary hearing on the issues of
  whether the asset sale amounted to merger between WDE and WD and whether
  WD substantially continued WDE's business. A hearing is scheduled for
  February 2, 2010 at 4:30 P.M. The Clerk of the Court is directed to
  close this motion (Docket No. 133).
 
 http://www.terekhov.de/161.pdf
 
 Ha ha.
 
 From pacer:
 
 12/29/2010 161  NOTICE OF APPEAL from 159 Memorandum  Opinion. Document
 filed by Erik Andersen, Software Freedom Conservancy, Inc. Filing fee $
 455.00, receipt number E 924625. (tp) (Entered: 12/29/2010)

From pacer:

02/25/2011 174  TRUE COPY ORDER of USCA as to 161 Notice of Appeal filed
by Erik Andersen, Software Freedom Conservancy, Inc. USCA Case Number
10-5290that the appeal is hereby WITHDRAWN pursuant to Rule 42(b) of
the Federal Rules of Appellate Procedure. Catherine O'Hagan Wolfe, Clerk
USCA for the Second Circuit. Certified: 02/25/2011. (nd) (Entered:
02/25/2011) 

regards,
alexander.

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Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

2011-02-09 Thread Alexander Terekhov


Alexander Terekhov wrote:
 
 http://www.citizen.org/documents/Vernor_Autodesk_Petition_Rehearing.pdf

From PACER:

-
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TIMOTHY S. VERNOR,
Plaintiff - Appellee,
v.
AUTODESK INC,
Defendant - Appellant.

No. 09-35969
D.C. No. 2:07-cv-01189-RAJ
Western District of Washington,
Seattle

ORDER

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

Judge Callahan and Judge Ikuta vote to deny the petition for rehearing
en
banc, and Judge Canby recommends denying en banc rehearing. The petition
for
en banc rehearing has been circulated to the full court, and no judge of
the court
has requested a vote on the petition for rehearing en banc. Fed. R. App.
P. 35(b).
The petition for for rehearing en banc is DENIED.
-

regards,
alexander.

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Software downloads and first sale (and also copying under Art.5(1) 2009/24/EC aka 17 USC 117 in US) in Europe

2011-02-08 Thread Alexander Terekhov

http://www.usedsoft.com/en/images/pdf/presseinfo/usedSoft_PM_EUGH_Final_engl_110203.pdf

Press Release

Munich 03 February 2011

usedSoft welcomes clarification of the download issue by the ECJ
European Court of Justice now to decide whether downloaded software may
be traded as used/Trade of used software remains legal usedSoft has
expressly welcomed the ruling of the Federal Court of Justice (BGH) in
the Oracle case. Asking the European Court of Justice to make a final
ruling is the logical and correct decision, declared usedSoft managing
director Peter Schneider. Ultimately, the resale of downloaded software
is based on European regulations which must also be clarified for all of
Europe.

The Federal Court of Justice has submitted the Oracle case to the
European Court of Justice for a ruling. The ECJ will now decide,
presumably within one or two years, whether software which was
transmitted to the buyer online may also be traded as used. This is
exactly what we want to achieve, namely, final clarity, added
Schneider. We regard this to be an important stepping stone victory on
the way to truly free trade on the software market.

However, the future decision by the ECJ will have little impact on the
trade with used software because the legal circumstances regarding trade
with used software are largely clarified. As the BGH declared in its
press release today: According to Art. 5 (1) of the directive
2009/24/EC, the reproduction of a computer program does not, in the
absence of specific contractual provisions, require the authorisation of
the rightholder

Sabine Leutheusser-Schnarrenberger, German Federal Minister of Justice,
also confirmed in September 2010 that trade with used software is
essentially legal. Legal uncertainty exists only with respect to
software which has been sold online. Courts in Munich and Hamburg have
handed down similar decisions in recent years. The RC Munich, for
example, ruled in April 2008 that the sale or vending of single
Microsoft software licences previously granted within the framework of
volume licence agreements is fundamentally possible as an effective
transaction even without the consent of Microsoft.

About usedSoft

usedSoft was set up in 2003, and it is a leading European supplier of
used software originating from all application fields. Buyers of
usedSoft licences are companies as well as software dealers. Customers
of usedSoft are, among others, companies such as Edeka, KarstadtQuelle,
Kaufland, Neckermann, Rewe, the Law Office Holme Roberts Owen, as well
as a leading soccer club belonging to the German Soccer League and a
number of different Savings Banks. German authorities are more and more
using used software as well: Next to the Bavarian State Capital of
Munich, the German Federal Social Court in Kassel, the Municipal
Administration of Bad Salzuflen and the Data Central Office of
Baden-Württemberg, there were more than 100 additional local authorities
benefiting from usedSoft licences. The cost-saving benefit when
purchasing already used licences ranges between 20 and 50 percent of the
sales price.

www.usedsoft.com

For further inquiry, please contact:

Christoph Möller möller pr Telefon: +49 (0)221 80 10 87-87 Email:
c...@moeller-pr.de www.moeller-pr.de

http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bghArt=pmDatum=2011Sort=3nr=54948pos=0anz=21

Bundesgerichtshof

Mitteilung der Pressestelle

Nr. 21/2011

Bundesgerichtshof legt EuGH Fragen zur Zulässigkeit des Vertriebs
gebrauchter Softwarelizenzen vor Der u. a. für das Urheberrecht
zuständige I. Zivilsenat des Bundesgerichtshofs hat dem Gerichtshof der
Europäischen Union heute Fragen zur urheberrechtlichen Zulässigkeit des
Vertriebs gebrauchter Softwarelizenzen zur Vorabentscheidung
vorgelegt.

Die Klägerin entwickelt Computersoftware, die sie ganz überwiegend in
der Weise vertreibt, dass die Kunden keinen Datenträger erhalten,
sondern die Software von der Internetseite der Klägerin auf ihren
Computer herunterladen. In den Lizenzverträgen der Klägerin ist
bestimmt, dass das Nutzungsrecht, das die Klägerin ihren Kunden an den
Computerprogrammen einräumt, nicht abtretbar ist.

Die Beklagte handelt mit gebrauchten Softwarelizenzen. Im Oktober 2005
bot sie bereits benutzte Lizenzen für Programme der Klägerin an. Dabei
verwies sie auf ein Notartestat, in dem auf eine Bestätigung des
ursprünglichen Lizenznehmers verwiesen wird, wonach er rechtmäßiger
Inhaber der Lizenzen gewesen sei, diese nicht mehr benutze und den
Kaufpreis vollständig bezahlt habe. Kunden der Beklagten laden nach dem
Erwerb einer gebrauchten Lizenz die entsprechende Software von der
Internetseite der Klägerin auf einen Datenträger herunter.

Die Klägerin ist der Auffassung, die Beklagte verletze dadurch, dass sie
die Erwerber gebrauchter Lizenzen dazu veranlasse, die entsprechenden
Computerprogramme zu vervielfältigen, das Urheberrecht an diesen
Programmen. Sie hat die Beklagte deshalb auf

Re: Blowhard Bradley Kuhn and his fraud

2011-02-04 Thread Alexander Terekhov


David Kastrup wrote:
 
 RJack u...@example.net writes:
 
  On 2/3/2011 10:59 AM, David Kastrup wrote:
  RJacku...@example.net  writes:
 
  On 2/2/2011 9:47 AM, RJack wrote:
 
  Uh... buh bye SFC and Erik Andersen:
 
  ---Filed 02/01/11--- ANSWER OF PHOEBE MICRO, INC.
 
  Uh, that's the reply of the defendant, not a court order.  Let's see
  how much of it remains after being filtered through the judge before
  starting to party...
 
  Oh Yea of little faith!
 
  That defendant reply agrees with all of my prior assertions in posts
  concerning the  Best Buy Inc. debacle.
 
 Given your track record, that should worry them.
 
  Since my reasoning is infallible, the end surely draws nigh.
 
 Doubtless.

Almost ten years ago EBEN MOGLEN, ESQ fraudster (Bradley Kuhn is his
underling) tried to obtain a preliminary injunction in a case alleging
the GPL violation:

http://www.gnu.org/press/mysql-affidavit.html

The result was that the court found no demonstrated a substantial
likelihood of success on the merits by the plaintiffs, (2) no
irreparable harm to plaintiffs, (3) the court judged that the balance of
hardships tipped against plaintiffs, and (4) ruled that later release of
source code perfectly cures the alleged breach (utterly dismissing the
GPL automatic termination theory): 

http://scholar.google.com/scholar_case?case=13584730711160488510

What makes you think that the outcome now will be any different, dak?

regards,
alexander.

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Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

2011-02-03 Thread Alexander Terekhov

Stupidity rules in the Ninth Circuit:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ADOBE SYSTEMS INCORPORATED,
Plaintiff,
v.
ANTHONY KORNRUMPF, a/k/a TONY
KORNRUMPF; and HOOPS ENTERPRISE, LLC,
Defendants.
/
HOOPS ENTERPRISE, LLC,
Counter-Claimant,
v.
ADOBE SYSTEMS INCORPORATED,
Counter-Defendant,
and
SOFTWARE AND INFORMATION INDUSTRY
ASSOCIATION,
Third-Party Defendant.
/
No. C 10-02769 CW
ORDER GRANTING
ADOBE SYSTEMS
INCORPORATED AND
SOFTWARE 
INFORMATION
INDUSTRY
ASSOCIATIONS
MOTION TO DISMISS
HOOPS ENTERPRISE,
LLCS CLAIMS
(Docket No. 34)
Plaintiff



First Sale Doctrine

A copyright holder has the exclusive right to distribute
copies . . . of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. 17 U.S.C.
§ 106(3). The first sale doctrine enables an owner of a
particular copy of a copyrighted work to sell or dispose of his
copy without the copyright owners authorization. Vernor v.
Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir. 2010) (quoting 17
U.S.C. § 109(a)). The doctrine does not apply to a person who
possesses a copy of the copyrighted work without owning it, such as
a licensee. Vernor, 621 F.3d at 1107 (citing 17 U.S.C. § 109(d)).

Notwithstanding its distinctive name, the doctrine applies
not only when a copy is first sold, but when a copy is given away
or title is otherwise transferred without the accouterments of a
sale. UMG Recordings v. Augusto, ___ F.3d ___, 2011 WL 9399, at
*3 (9th Cir.) (citations omitted). However, not every transfer of
possession of a copy transfers title. Id. at *4. For instance,
in the context of computer software, copyright owners may create
licensing arrangements so that users acquire only a license to use
the particular copy of software and do not acquire title that
permits further transfer or sale of that copy without the
permission of the copyright owner. Id.

In Vernor, a declaratory judgment action, the Ninth Circuit
addressed the resale of copyrighted software on eBay. 621 F.3d at
1103. There, Vernor sought a declaration that he did not infringe
the copyright of Autodesk, a software company. Id. Vernor had
purchased copies of Autodesks software from Cardwell/Thomas 
Associates (CTA), one of Autodesks direct customers, and then
attempted to resell them on eBay. Id. CTA had obtained the copies
under a software license agreement, which imposed significant
restrictions on their transfer and use. Id. at 1104. Based on
this agreement, the Ninth Circuit rejected Vernors assertion of
the first sale doctrine, concluding that neither he nor CTA were
owners of the particular copies. Id. at . The court reasoned
that CTA was only a licensee and that Autodesk retained title to
the software. Id.

Here, Hoops does not plead any facts to suggest that it owned
any of the particular copies of Adobe software that it resold or
that it obtained the copies from entities that had owned them. Nor
does Hoops allege that Adobe ever sold, gave away or transferred
title to the particular copies of the software at issue. Hoops
avers that it resold Adobe products it purchased from third party
intermediary distributors, Hoops Countercl. ¶ 8, but offers no
facts regarding under what terms these distributors obtained the
copies. Although it maintains that these copies did not infringe
Adobes right of reproduction, id., Hoops says nothing about
Adobes right of distribution, to which the first sale doctrine
applies.

In lieu of addressing these defects, Hoops offers an
unpersuasive argument that it has not sold Adobes copyrighted work
but rather sold discs containing copies of that work. This
attempted distinction illuminates the flaw in Hoopss theory.
Adobe does not allege that Hoops unlawfully transferred ownership
of Adobes copyrighted software. It alleges that Hoops and
Kornrumpf sold copies of Adobes software in violation of Adobes
exclusive distribution right. To avail itself of the first sale
doctrine, Hoops must demonstrate that it owned the copies of the
Adobe software it resold; it is irrelevant whether Hoops owned the
discs on which the copies were stored. A copyright attaches to an
original work of authorship, not the particular medium in which it
was initially fixed.

Hoops appears to argue that Vernor is distinguishable because
that case involved a license agreement. However, Hoopss
allegations are not sufficient to determine whether Vernor is
analogous; as noted above, Hoops offers no insight into the
circumstances under which it obtained the copies of Adobe software.

Finally, Hoops alleges that Adobe and SIIA misuse Adobes
copyrights because their conduct attempts to hamper competition by
eliminating the secondary market of copies of Adobe software.
However, because Hoops has not established that it, or any other
re-seller, sold copies subject to the first sale doctrine, this
allegation is unavailing. It is not a misuse of copyright to
dismantle a market

Re: UMG vs. Augusto: first sale wins

2011-02-03 Thread Alexander Terekhov

http://www.iplitigationupdate.com/blog.aspx?entry=1173

Sending Promotional Music CDs Constitutes First Sale for Copyright
Protection Purposes

Januar 28, 2011 | Posted by Karin Scherner Aldama | Print this page 

The Ninth Circuit recently held that a copyright owners unsolicited
mailing of promotional music CDs to, for 
example, music critics and radio disc jockeys constituted a sale of the
discs to their recipients for purposes of the Copyright Acts first sale
doctrine, 17 U.S.C. § 109(a). UMG Recordings, Inc. v. Augusto, __ F.3d
__, No. 08-55998, 2011 WL 9399 (9th Cir. Jan. 4, 2011).

UMG brought copyright infringement claims against Augusto, who had
obtained from third parties promotional CDs distributed by UMG and then
offered those CDs for auction on the Internet. UMG argued that the
original recipients of its CDs only obtained a license because the CDs
generally contained promotional statements indicating that they were
licensed to the intended recipient for personal use only, and that
their acceptance constitute[s] an agreement to comply with the terms of
the license. Id. at *1. The promotional statements also prohibited the
transfer or resale of the CDs. Augusto argued against the claims on the
basis of the first sale doctrine. That doctrine provides that the lawful
owner of a lawful copy of a CD can sell or otherwise dispose of that
copy as he pleases, without the consent of the copyright owner. 17
U.S.C. § 109(a). The district court granted summary judgment for
Augusto, and UMG appealed.

In upholding the district courts grant of summary judgment for Augusto,
the Ninth Circuit concluded that the original recipients obtained
ownership of and title to the CDs, and thus the first sale doctrine
applied. The Ninth Circuit based its conclusion on an evaluation of all
the circumstances of the CDs distribution. UMG, 2011 WL 9399, at *4.
Of particular importance were the following factors: (1) The CDs were
unsolicited and dispatched without any prior arrangement with their
intended recipients in regard to what would happen to the individual
CDs; (2) The CDs [were] not numbered, and no attempt [was] made to keep
track of where particular copies [were] or what use [was] made of them,
so that UMG retained no control over the copyrighted material; and (3)
The promotional statements on the CDs did not create a license because
there was no evidence that any of the original recipients ever agreed to
enter into a license agreement, and acceptance of a license cannot be
assumed when the recipient makes no response at all. Id. at *4, *6.
Based on these factors, the court concluded that UMG dispatched the CDs
in a manner that permitted their receipt and retention by the recipients
without the recipients accepting the terms of the promotional
statements. UMGs transfer of unlimited possession in the circumstances
present here effected a gift or sale within the meaning of the first
sale doctrine. Id. at 7.

In reaching its conclusion, the court emphasized the differences between
the circumstances in this case and those at issue in cases involving
software licenses. Specifically, the court focused on the fact that
software users order and pay for copies of software and implied that it
was also relevant that software vendors typically control how the
copyrighted software can be used. Id. at *6-7. Effective software
licenses are thus distinguishable from the ineffective licenses that UMG
tried to create.

Augusto had also argued against UMGs claims based on the Unordered
Merchandise Statute, 39 U.S.C. § 3009, which allows recipients of
unordered merchandise to dispose of that merchandise as they see fit.
The court found that Augusto could not invoke that statute directly
because, by its terms, it applied only to the CDs original recipients.
Nonetheless, the court concluded that the Unordered Merchandise Statute
supported its conclusion that the mailing of the CDs effected a sale and
not a license because the statute renders recipients of unordered
merchandise, such as the CDs at issue, owners of that merchandise. UMG,
2011 WL 9399, at *5.

Lesson Learned: The unsolicited mailing of copyrighted material without
any control over what subsequently happens to that material constitutes
a first sale. Unless the recipients agree to enter into a license, a
first sale occurs even if the material is accompanied by a promotional
statement seeking to create a license, because acceptance of such a
license cannot be assumed without the recipients confirmation of
acceptance. Consequently, after receipt of unsolicited copyrighted
materials, recipients can dispose of that material as they see fit, and
the copyright holder cannot control or prevent that disposition.

chuckles

regards,
alexander.

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Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernorscandalous ruling)

2011-02-03 Thread Alexander Terekhov


RJack wrote:
[...]
 All this ruling really says, is that Hoops as a counter-claimant has the
 status of a plaintiff (not defendant) and carries the burden of proof
 and must plead facts to establish ownership of the copies in order to
 defeat a Motion to Dismiss.

I disagree. The court ruled:

Hoops avers that it resold Adobe products it purchased from third
party intermediary distributors, Hoops Countercl. ¶ 8, but offers no
facts regarding under what terms these distributors obtained the
copies.

Some time ago I bought a BMW car from a nearby dealer. The car includes
tons of software and I even patched some of it (navigation computer
software originating from http://www.navteq.com/ GPS stuff). Patching
aside, I have no idea regarding what terms these distributors obtained
the copies of the software in my BMW car. And now I'm being told that I
can not sell my BMW car without permission from bmw.com if I live in
California... Luckily I don't live in the Ninth Circuit...

regards,
alexander.

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Re: Blowhard Bradley Kuhn and his fraud

2011-02-01 Thread Alexander Terekhov

LMAO!

01/31/2011 163  MOTION for Preliminary Injunction. Document filed by
Erik Andersen, Software Freedom Conservancy, Inc..(Ravicher, Daniel)
(Entered: 01/31/2011) 
01/31/2011 164  MEMORANDUM OF LAW in Support re: 163 MOTION for
Preliminary Injunction.. Document filed by Erik Andersen, Software
Freedom Conservancy, Inc.. (Ravicher, Daniel) (Entered: 01/31/2011) 
01/31/2011 165  DECLARATION of Erik Andersen in Support re: 163 MOTION
for Preliminary Injunction.. Document filed by Erik Andersen, Software
Freedom Conservancy, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit
2)(Ravicher, Daniel) (Entered: 01/31/2011) 
01/31/2011 166  DECLARATION of Bradley M. Kuhn in Support re: 163 MOTION
for Preliminary Injunction.. Document filed by Erik Andersen, Software
Freedom Conservancy, Inc.. (Ravicher, Daniel) (Entered: 01/31/2011) 

regards,
alexander.

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Patent Bubble

2011-01-15 Thread Alexander Terekhov

http://www.networkworld.com/news/2011/011011-patent-winners-ibm-apple.html

-
The research firm reports that 2010 was a record year for patents. In
all, the U.S. Patent and Trademark Office issued 219,614 patents  which
is 31% more patents than were issued in 2009. 

The tremendous increase in patent issues in 2010 suggests that so far
the economy doesnt appear to have slowed patent flow significantly in
the U.S., said Darlene Slaughter, general manager of IFI, in a
statement. Another important factor is the stepped up effort of the
USPTO to improve turnaround times and its five-year strategic plan to
increase efficiencies and reduce pendency. The bottom line: There is
still a backlog of patents pending, but the number of grants continues
to grow even after a period of economic downturn. 

Follow Ann Bednarz on Twitter: http://twitter.com/annbednarz

Read more about infrastructure management in Network World's
Infrastructure Management section. 
-

regards,
alexander.

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license v license v /license/

2011-01-11 Thread Alexander Terekhov

Nice paper: 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586580download=yes 
(Why License Agreements Do Not Control Copy Ownership: First Sales and
Essential Copies) 

I especially like this part: 

When license is used as a noun in the copyright context, it means
something like, a grant by the holder of a copyright to another of any
of the rights embodied in the copyright short of an assignment of all
rights as in The agreement contained a license to reproduce 20 copies
of the photograph. 

When license is used as a verb it typically means to give permission
or consent as in The author licensed her publication right to the
nation's largest distributor. 

These uses of the word relate only to the intangible copyright. 

The word license is also, unfortunately, used in conjunction with
tangible things. First, as a noun it is often used synonymously with the
terms agreement or contract when that underlying agreement contains
grants of copyright permissions, as in Did she sign the license? This
usage seems to lead to confusion less often and I will not address it
further here. 

However, particularly in the software context, the word license is
used as a verb in yet another way that I wish to focus on. Software
distributors often say, We only license our software. We do not sell
it. This is a difficult sentence to parse because of the layers of
ambiguity involved, but particularly from reading the cases, one comes
to understand that the intended definition is not just that described
above of to give permission or consent with respect to some right of
copyright, but instead is used in a way that means something more like: 

to transfer to another possession of a tangible object in which a
copyrighted work is embodied, for a specified period of time or
perpetually, without transferring title to the tangible object, and
typically providing at least some copyright permission. 

It would be useful to have a different term to indicate this unique use
of license. Something like no title to the copy license would
perhaps convey the intended meaning, but would be exceedingly
cumbersome. For purposes of clarity in this section, when I talk about
this sense of license I will place the word in italics, like so:
/license/.140 

Usage of the word /license/ has caused rampant confusion. Before
considering some examples of this confusion, it is worthwhile to provide
some historical context on the development of this usage of the term
/license/. The Third Circuit explained, in an opinion from 1991, that: 

When these form licenses were first developed for software, it was, in
large part, to avoid the federal copyright law first sale doctrine...
[Court describes software rental companies.] The first sale doctrine,
though, stood as a substantial barrier to successful suit against these
software rental companies, even under a theory of contributory
infringement. By characterizing the original transaction between the
software producer and the software rental company as a license, rather
than a sale, and by making the license personal and non-transferable,
software producers hoped to avoid the reach of the first sale doctrine
and to establish a basis in state contract law for suing the software
rental companies directly. Questions remained, however, as to whether
the use of state contract law to avoid the first sale doctrine would be
preempted either by the federal copyright statute (statutory preemption)
or by the exclusive constitutional grant of authority over copyright
issues to the federal government (constitutional preemption).
(citations). Congress recognized the problem, and, in 1990, amended the
first sale doctrine as it applies to computer programs and
phonorecords... This amendment renders the need to characterize the
original transaction as a license largely anachronistic.141 

But the usage, even if anachronistic, has persisted, in part because
software distributors wanted more than to defeat the first sale doctrine
in the case of software rental companies. Even after Congress responded
to that concern, software distributors were unwilling to give up the
/licensing/ fiction because it appeared to provide a means to other
desirable ends such as price discrimination, controlling ancillary
markets, and preventing competition in related goods.142 

The merits of permitting copyright owners these additional benefits are
not my focus. I am concerned with how the ambiguous use of the word
license has created a land mine for courts who end up speaking
imprecisely or in the worst case scenarios, reaching erroneous
conclusions. 

The Microsoft Corp. v. Software Wholesale Club, Inc. opinion provides
one example. The court wrote, However, a party that licenses its
products rather than selling them may avoid the application of the
first-sale doctrine. See, e.g., Harmony Computers  Elecs., (the fact
that Microsoft licenses rather than sells its products likely precludes
application of the first-sale doctrine); Novell,

Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)

2011-01-10 Thread Alexander Terekhov

Nice article:

http://ipduck.blogspot.com/2011/01/from-ninth-circuit-giving-cds-away-for.html

From the Ninth Circuit: Giving CDs Away for Free Is a Sale, But
Selling Software for Money Isn't a Sale 

While the title of this post perhaps gives away the answer, I thought
I'd start the post with this quiz.  Which of the following is a sale
of the goods involved?

A.  A record company gives promotional CDs away for free, with no right
to get the CDs back once the recipient is done with them.  
B.  A software company sells software for money, with no right to get
the software back once the buyer is done with the software. 

If you thought that B was a sale and A was not a sale, you're not
alone (based on the unscientific home survey I did last night).  But
based on two cases from the Ninth Circuit, you have it completely
backwards.

The first case, decided in September 2010, was Vernor v. Autodesk.  The
case involved Autodesk's sale of computer software; the Ninth Circuit
opinion was the inspiration for my starting this blog.  My post on
Autodesk was entitled, The Ninth Circuit on first sale: 'If it looks
like a duck, and quacks like a duck, and flies like a duck . . . it's a
CHICKEN!' Read that post for the background of the first sale
doctrine, which in summary says that once a copyright owner sells a
physical copy of a work, the buyer can resell the physical copy without
implicating the copyright laws.  In Autodesk, the Ninth Circuit held
that certain restrictions in Autodesk's end user agreements meant that
even though its customers bought copies of the software for a one time
fee and got permanent possession of the software (that is, Autodesk had
no right to regain possession of the copies), the transaction was a
license, not a sale, and the first sale doctrine didn't apply.  I
commented that putting a license label on the transaction, which
Autodesk did, didn't make the economic realities of the transaction a
license instead of a sale, any more than calling a duck a chicken
makes it a chicken.

Two other cases were argued before the Ninth Circuit the same day as
Autodesk.  One of them, MDY v. Blizzard, was decided in December and
only peripherally involves the first sale doctrine.  The other one, UMG
v. Augusto, was decided yesterday.

Augusto involved UMG's distribution of promotional CD's.  UMG would give
the CD's to disc jockeys and the like for marketing purposes.  UMG did
not charge money for the CD's and gave them away unsolicited.  UMG
marked the discs either Promotional Use Only--Not for Sale or with a
promotional statement saying that the transaction was a license. 
Augusto obtained copies of the CD's and tried to sell them on eBay; the
lawsuit ensued.

Well, if the transaction in Autodesk wasn't a sale because Autodesk sold
its software under a license agreement, then surely UMG's giving CD's
away for free under a license agreement can't be a sale either,
right?  In other words, the UMG CD's are even more of a chicken than
the Autodesk software.

Not according to the Ninth Circuit, which ruled in favor of Augusto
under the first sale doctrine (and also a Postal Act statute on
unordered merchandise).  The Court stated:

We conclude that, under all the circumstances of the CDs distribution,
the recipients were entitled to use or dispose of them in any manner
they saw fit, and UMG did not enter a license agreement for the CDs with
the recipients. Accordingly, UMG transferred title to the articular
copies of its promotional CDs and cannot maintain an infringement action
against Augusto for his subsequent sale of those copies.
. . .
It is one thing to say, as the [promotional] statement does, that
acceptance of the CD constitutes an agreement to a license and its
restrictions, but it is quite another to maintain that acceptance may
be assumed when the recipient makes no response at all. This record
reflects no responses. Even when the evidence is viewed in the light
most favorable to UMG, it does not show that any recipients agreed to
enter into a license agreement with UMG when they received the CDs. 
Because the record here is devoid of any indication that the recipients
agreed to a license, there is no evidence to support a conclusion that
licenses were established under the terms of the promotional statement.

It's hard to disagree with any of this.  Except, of course, that most of
the above applies equally to the software sales in Autodesk.  About the
only difference is that buyers of mass-marketed software find when they
open a shrink-wrapped package that there is a license agreement
inside.  But otherwise, software buyers can dispose of the software as
they see fit, and don't make a response to a shrink-wrapped license.

The Ninth Circuit says that software is different, though, to explain
the different result in the two cases.  Its Augusto opinion says that
its Autodesk formulation, however, applies in terms to software users,
and not to UMG's customers.  At least one problem with this

UMG vs. Augusto: first sale wins

2011-01-08 Thread Alexander Terekhov

http://www.phphosts.org/2011/01/court-rules-that-its-legal-to-sell-promotional-cds/

-
Court Rules That Its Legal To Sell Promotional CDs

Last year, we had noted that the 9th Circuit appeals court was set to
hear three separate cases, all revolving around the first sale doctrine,
which allows you to resell copyrighted works that you possess. The first
ruling of the three, back in September, was bad news: overruling a good
district court ruling, in Vernor v. Autodesk, saying that anyone could
effectively wipe out your first sale rights by simply putting a
license on it. The second ruling, in MDY vs. Blizzard, was more of a
mixed bag. It accepted the basics of Vernor but said that just because
you violate a license, it doesnt automatically mean you violate the
copyright.

Now, the ruling in the third case, UMG vs. Augusto, has come out and it
looks pretty good. It upholds the first sale rights of people who get
promotional CDs (pdf of the ruling, which is also embedded below).
Basically, the court seems to agree with the lower courts ruling, which
suggested that being able to overrule first sale rights with a couple of
sentences stamped on a CD, which the labels clearly never intended to
get back, would undermine the entire principle of the first sale
doctrine (though, it did so for different reasons).

So, how did the court square this ruling with its own decision in
Vernor, which essentially said something different? It basically comes
down to the fact that Universal Music gave out these CDs without
expecting them back or without getting the original recipient to agree
to anything specific. That is, the text stamped on the CD doesnt count
as a true license agreement. But all the crap included with Autodesk
software does count as a license agreement (rather than a true transfer
of ownership):

It is one thing to say, as the statement does, that acceptance
of the CD constitutes an agreement to a license and its 
restrictions, but it is quite another to maintain that 
acceptance may be assumed when the recipient makes no response 
at all. This record reflects no responses. Even when the evidence 
is viewed in the light most favorable to UMG, it does not show
that any recipients agreed to enter into a license agreement
with UMG when they received the CDs.

Because the record here is devoid of any indication that
the recipients agreed to a license, there is no evidence to 
support a conclusion that licenses were established under the
terms of the promotional statement. Accordingly, we conclude
that UMGs transfer of possession to the recipients,
without meaningful control or even knowledge of the status
of the CDs after shipment, accomplished a transfer of title.

The main difference between the lower court ruling and this new ruling
is that the appeals court focused on the lack of any actual agreement
in the license, while the lower court focused on the lack of expected
return of the promotional CD. 

Not surprisingly, I think the court got this right but since I also
believe that the earlier Vernor ruling was very, very wrong, its not
surprising that I think this ruling does a nifty little tap dance to
pretend that this ruling and the Vernor ruling are consistent. It
basically says that it all depends on the means of distribution, in
that recipients of promo CDs did not ask for them, while purchasers of
software did. But that seems to be besides the point and somewhat
unrelated. The same issue that seems to drive this ruling for Augusto
should apply to Vernor as well. The court notes that theres no
acceptance of a license and you cant assume acceptance via no
response. And yet, thats how most such software licenses work as well.

While Im happy about this particular ruling, it still seems to conflict
with itself and I would imagine we havent heard the last of these three
first sale cases...
-

http://www.auctionbytes.com/cab/cab/abn/y11/m01/i06/s01

-
eBay Seller Wins First-Doctrine Appeal, Allowed to Sell Promo CDs

By Ina Steiner 

AuctionBytes.com 

January 06, 2011 

Reading AuctionBytes: eBay Seller Wins First-Doctrine Appeal, Allowed to
Sell Promo CDs 

Share   

An appeals court ruled that an online seller who obtained UMG promo CDs
could sell them on eBay, but said the ruling does not change its recent
decision in the Vernor v Autodesk case in which it ruled Timothy Vernor
could not sell Autodesk software on eBay. 

Both cases tested the First Sale doctrine, which holds that the owner of
a particular copy of a copyrighted work has the right to resell that
work without permission of the copyright owner. 

This week's ruling stemmed from a copyright infringement lawsuit filed
by UMG Recordings against Troy Augusto. The defendant, Augusto, obtained
promotional CDs that UMG used for marketing purposes and later sold them
on eBay, an act that UMG contended infringed its exclusive right to
distribute the discs. 

Augusto asserted that UMG's initial distribution of the

Re: Blowhard Bradley Kuhn and his fraud

2011-01-04 Thread Alexander Terekhov

Hilarious!!!

 http://www.terekhov.de/159.pdf
 
 Plaintiffs' motion to join respondents is denied as to CMA. Plaintiffs'
 motion to join WD is denied, without prejudice subject to Plaintiff's
 decision to refile following an evidentiary hearing on the issues of
 whether the asset sale amounted to merger between WDE and WD and whether
 WD substantially continued WDE's business. A hearing is scheduled for
 February 2, 2010 at 4:30 P.M. The Clerk of the Court is directed to
 close this motion (Docket No. 133).

http://www.terekhov.de/161.pdf

Ha ha.

From pacer:

12/29/2010 161  NOTICE OF APPEAL from 159 Memorandum  Opinion. Document
filed by Erik Andersen, Software Freedom Conservancy, Inc. Filing fee $
455.00, receipt number E 924625. (tp) (Entered: 12/29/2010) 

12/29/2010Transmission of Notice of Appeal and Certified Copy of
Docket Sheet to US Court of Appeals re: 161 Notice of Appeal. (tp)
(Entered: 12/29/2010) 

12/29/2010Transmission of Notice of Appeal to the District Judge re:
161 Notice of Appeal. (tp) (Entered: 12/29/2010) 

12/29/2010Appeal Record Sent to USCA (Electronic File). Certified
Indexed record on Appeal Electronic Files for 112 MOTION for Default
Judgment as to Westinghouse Digital Electronics, LLC. MOTION for Summary
Judgment against Westinghouse Digital Electronics, LLC. filed by Erik
Andersen, Software Freedom Conservancy, Inc., 8 Certificate of Service
Complaints filed by Humax USA Inc., 139 Certificate of Service Other,
filed by Erik Andersen, Software Freedom Conservancy, Inc., 64 Answer to
Complaint, Counterclaim filed by Best Buy Co., Inc., 1 Complaint, filed
by Software Freedom Conservancy, Inc., 48 Stipulation and Order, Set
Deadlines/Hearings, 140 Certificate of Service Other, filed by Erik
Andersen, Software Freedom Conservancy, Inc., 33 Stipulation and Order,
Set Deadlines/Hearings, 87 Stipulation and Order, 42 Order Admitting
Attorney Pro Hac Vice, 81 Rule 7.1 Corporate Disclosure Statement filed
by Comtred Corporation, 103 Stipulation and Order of Dismissal, 95
Stipulation and Order, 96 Stipulation and Order, 23 Stipulation and
Order, Set Deadlines, 39 Notice of Appearance filed by Humax USA Inc.,
17 Notice of Appearance filed by Dobbs-Stanford Corporation, 83 Rule 7.1
Corporate Disclosure Statement filed by ZYXEL Communications Inc., 34
Stipulation and Order, Set Deadlines/Hearings, 50 Endorsed Letter, 56
Notice of Appearance filed by Best Buy Co., Inc., 54 Order Referring
Case to Magistrate Judge, 15 Notice of Appearance filed by Comtred
Corporation, 63 Rule 7.1 Corporate Disclosure Statement filed by Best
Buy Co., Inc., 149 Memorandum of Law in Opposition to Motion, filed by
Westinghouse Digital, LLC, 27 Certificate of Service Complaints filed by
Software Freedom Conservancy, Inc., 122 MOTION for Shiou-Jin Christine
Hwang Yang to Appear Pro Hac Vice filed by ZYXEL Communications Inc., 74
Rule 7.1 Corporate Disclosure Statement filed by Western Digital
Technologies, Inc., 104 Order, Set Hearings, 24 Stipulation and Order,
Set Deadlines, 2 Rule 7.1 Corporate Disclosure Statement filed by
Software Freedom Conservancy, Inc., 77 Answer to Complaint filed by
ZYXEL Communications Inc., 41 Notice of Appearance filed by Phoebe
Micro, Inc., 49 Stipulation and Order, Set Deadlines, 94 Stipulation and
Order, 115 Declaration in Support of Motion, filed by Erik Andersen,
Software Freedom Conservancy, Inc., 46 Order Admitting Attorney Pro Hac
Vice, 153 Declaration in Opposition to Motion filed by Credit Managers
Association of California, 72 Rule 7.1 Corporate Disclosure Statement
filed by Dobbs-Stanford Corporation, 130 Memorandum of Law in Opposition
to Motion filed by Erik Andersen, Software Freedom Conservancy, Inc., 13
Certificate of Service Complaints filed by Software Freedom Conservancy,
Inc., 85 Stipulation and Order, Set Deadlines, 136 Protective Order, 30
Stipulation and Order, Set Deadlines/Hearings, 144 Notice of Voluntary
Dismissal - Signed, 62 Answer to Complaint filed by Westinghouse Digital
Electronics, LLC, 25 Certificate of Service Complaints filed by Software
Freedom Conservancy, Inc., 88 Stipulation and Order, Set Deadlines, 156
Declaration in Support of Motion filed by Erik Andersen, Software
Freedom Conservancy, Inc., 61 Rule 7.1 Corporate Disclosure Statement
filed by Westinghouse Digital Electronics, LLC, 18 Notice of Appearance
filed by Dobbs-Stanford Corporation, 92 Stipulation and Order, Set
Deadlines/Hearings, 58 Notice of Appearance filed by Best Buy Co., Inc.,
55 Notice of Appearance filed by Versa Technology Inc., 108 Endorsed
Letter, Set Deadlines/Hearings, 127 MOTION for Kyle Bradford Fleming;
Sarah Bawany Yousuf to Withdraw as Attorney. filed by Westinghouse
Digital Electronics, LLC, 109 Stipulation and Order of Dismissal, 22
Stipulation and Order, Set Deadlines, 101 Rule 7.1 Corporate Disclosure
Statement filed by Samsung Electronics America, Inc., 138 Certificate of
Service Other, filed by Erik Andersen, Software Freedom Conservancy,

MDY v. BLIZZARD

http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=011049
(Opinion for: MDY INDUSTRIES, LLC V. BLIZZARD ENTERTAINMENT, INC.,
09-15932)

The question of copy ownership aside, the court rejected the 
copyright claim and held: 

Were we to hold otherwise, Blizzard  or any software copyright
holder  could designate any disfavored conduct during software
use as copyright infringement, by purporting to condition the
license on the player's abstention from the disfavored conduct.
The rationale would be that because the conduct occurs while
the player's computer is copying the software code into RAM in
order for it to run, the violation is copyright infringement.
This would allow software copyright owners far greater rights
than Congress has generally conferred on copyright owners.

It seems the court here ruled that certain requirements in a
software license may be construed as covenants rather than
conditions (or license scope limitations like e.g. a limit
on number of copies to be made). In other words, the WoW
license may say, in a nutshell, We license you the right to
use this software so long as you don't use a bot. (Among other
things). The court considered that a covenant of a contract,
not a condition of the license (and not a license scope
limitation). What impact could that reasoning have on the
copyleft-like licenses? The copyleft basically says, We
license you the right to distribute verbatim or modified
versions of this software so long as you provide source code.
Could a court following the MDY precedent construe the
source code requirement as a covenant and not a
condition, thereby rendering the copyleft ineffective? I
see no reason why not...

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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Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit Court of Appeals

http://www.barrysookman.com/2010/12/20/teachings-from-the-blizzard-wow-case/

The second ruling provides guidance on when a restriction in a software
license is a condition, the breach of which constitutes copyright
infringement, and when a restriction is a covenant, the breach of which
is actionable only under contract law. The Court concluded that WoWs
prohibitions against bots and use of unauthorized third-party software
were covenants rather than copyright enforceable conditions.

Central to the Courts ruling was the holding that for a licensees
violation of a contract to constitute copyright infringement, there must
be a nexus between the condition and the licensors exclusive rights of
copyright. Here, WoW players did not commit copyright infringement by
using Glider in violation of the WoWs Terms of Use.

This Courts holding seems to require that for a term to be a condition,
its violation must be an infringement of copyright. If this is truly the
holding, it is significant as other cases focuse on whether a term was
drafted to be a condition rather than a mere promise by analyzing the
license language. See, Jacobsen v Katzer, 535 F.3d 1373 (Fed. Cir. 2008)
summarized here.
[http://www.barrysookman.com/2009/12/17/open-source-movement-gets-big-boost-from-copyright-laws-and-dmca-in-jacobsen-v-katzer/];

Why overruled?

The Federal Circuits jurisdiction over an intellectual property case
depends upon whether the case includes a patent claim. Because its
jurisdiction relates to patent claims, the Federal Circuit has
acknowledged that it must apply the copyright standards of the regional
circuit that would otherwise have had jurisdiction over the case had it
not contained a patent claim. Thus, ironically, in patent/copyright
cases appealed to the Federal Circuit from courts within the Ninth
Circuit, the Federal Circuit would be required to follow the Ninth
Circuits MDY Industries ruling and reject its own previous Jacobsen
ruling.

Hyman Rosen wrote:

On 12/21/2010 8:29 AM, Alexander Terekhov wrote:
What impact could that reasoning have on the copyleft-like licenses?

Nothing, because in the case of copylefts, the disfavored

Like the requirement to provide attribution as in Jacobsen case?

conduct involves copying, which is covered by copyright law.

To understand your stupidity suppose I simply provide a written offer
regarding source code.

You come to me for the source code with that offer.

I tell: piss off silly Hyman.

How does that would violate the copyright act, you idiot?

regards,
alexander.

Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourt of Appeals


Hyman Rosen wrote:
[...]
  suppose I simply provide a written offer regarding source code.
  You come to me for the source code with that offer.
  I [refuse].
  How does that would violate the copyright act?
 
 It wouldn't. You would have correctly complied with the conditions
 for copying, and therefore there is no copyright violation. But I
 now possess a written promise from you which you are not honoring,
 so my course of action would be to sue for breach of contract, not
 of the GPL but of your written offer.

You're making progress Hyman!!!

But what does a condition to GIVE written offer has to do with rights
spelled out in 17 USC 106 in the first place?

The nexus is non-existent.

See the light now?

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourt of Appeals


Hyman Rosen wrote:
[...]
 In the case of copyleft licenses, copiers who do not obey the
 terms of the license are still copying . . . . 

WoW gamers are also copying the game in order to play and even though
the imbecile court ruled that such copying doesn't fall under 17 USC 117
(because the games are not owners of their WoW copies), it still held
that breach of a condition not to use bots doesn't violate the
copyright act. Why do you think that a copyleft condition not to
restrict users downstream should be treated any differently?

The copyleft enforcement theory based on copyright-not-a-contract
silliness is authoritatively dead under MDY precedent.

Got it now, silly?

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals

Hyman Rosen wrote:
[...]
copyright infringement is a possible result of license violation.
It is the nature of the license violations that determine this.

Hyman, Blizzard argued exactly that way. And lost.

http://iplaw.hllaw.com/2010/12/articles/copyright/ninth-circuit-concludes-that-violation-of-wow-tou-did-not-give-rise-to-copyright-infringement-claim/

As to Blizzard's copyright claims, the District Court summed up the
allegations concisely:

Blizzard alleges that users of WoW are licensees who are permitted to
copy the copyrighted game client software only in conformance with the
EULA and TOU, and that when users launch WoW using Glider, they exceed
the license in the EULA and TOU and create infringing copies of the game
client software. . . . MDY is liable for contributory copyright
infringement, Blizzard claims, because it materially contributes to this
direct infringement by Glider users. MDY allegedly does so by
developing and selling Glider with the knowledge that Glider users will
create infringing copies. . . . MDY is liable for vicarious copyright
infringement, Blizzard asserts, because it has the ability to stop the
Glider-caused infringing activity and derives a financial benefit from
that activity.

In defense, MDY argued that Glider users do not infringe Blizzard's
copyright; rather, MDY argued that if users violate terms of the EULA
and TOU, they are merely breaching a contract, not infringing a
copyright.

The District Court first re-stated established Ninth Circuit law that
copying software to RAM constitutes copying under the Copyright Act.
As a result, if a person is not authorized by the copyright holder
(through a license) or by law (through section 117 [of the Copyright
Act]) to copy the software to RAM, the person is guilty of copyright
infringement because the person has exercised a right (copying) that
belongs exclusively to the copyright holder.

MDY argued that Glider users are licensed to copy the WoW game client
software to RAM, which license they acquired by purchasing and loading
the software onto their computers. But MDY asserted that provisions of
the EULA and TOU that contain prohibitions such as the prohibition
against use of bots are merely contractual terms not limitations on the
scope of the license granted by Blizzard. As a result, MDY argued that
although Blizzard may have breach of contract claims against Glider
users, it did not have copyright infringement claims.

The District Court disagreed in large part with MDY, concluding that the
EULA granted a limited license to WoW players and that, read together,
the EULA and TOU provided limits on the scope of the license granted by
Blizzard. Thus WoW players who use Glider acted outside the scope of
the limited license and therefore [c]opying the game client software to
RAM while engaged in this unauthorized activity constitutes copyright
infringement.

. . . .

The Ninth Circuit's Decision.

. . . .

As to the copyright infringement claims (alleging contributory and
vicarious infringement), the Ninth Circuit first addressed the
essential step defense of 17 U.S.C. 117(a)(1) and the question of
whether WoW players are owners or licensees of the copies of the WoW
software in their possession. Relying on its decision in Vernor, the
Ninth Circuit concluded that WoW players are merely licensees of their
copies of the WoW software and therefore neither they nor MDY were
entitled to the essential step defense. As a result, when their
computers copy WoW software into RAM, the players may infringe unless
their usage is within the scope of Blizzard's limited license.

The Ninth Circuit thus turned to an examination of the relevant portions
of Blizzard's license (the TOU), namely, the portion prohibiting bots
and unauthorized third-party software, to determine whether they were
conditions, the breach of which constitute copyright infringement, or
covenants, the breach of which give rise to only contract claims.

The Ninth Circuit concluded that the provisions of the license at issue
were covenants, the breach of which did not give rise to copyright
infringement claims. Essentially, the Ninth Circuit concluded that the
breach of a license agreement must implicate one of the exclusive rights
of copyright to give rise to a copyright infringement claim: [W]e have
held that the potential for infringement exists only where the
licensee's action (1) exceeds the license's scope (2) in a manner that
implicates one of the licensor's exclusive statutory rights.

regards,
alexander.

Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
 
 On 12/21/2010 9:48 AM, Alexander Terekhov wrote:
  that breach of a condition not to use bots doesn't violate the
  copyright act. Why do you think that a copyleft condition not to
  restrict users downstream should be treated any differently?
 
 Because the court itself said so:
 https://www.eff.org/files/MDY_opinion.pdf
   For instance, ToU § 4(D) forbids creation of derivative works

Copyleft doesn't forbid creation of derivative works. You can create
derivative works from copylefted works all you want. You can also copy
verbatim. Copyleft does impose several WOW ToU-like covenants (with
covenants itself having really nothing to do with the rights under 17
USC 106) for the case of subsequent distribution of copies of derivative
works (ans/or copies verbatim). The distribution of copies made under
the GPL (whether verbatim or with modifications) itself falls under 17
USC 109 and hence isn't a copyright infringement by definition of 17 USC
109. Go read it, silly.

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
[...]
   17 USC 109
 
 The GPL allows copying and distribution only under its terms, and
 distinguishes between copies for personal use and distribution.
 It is a violation of copyright to distribute the former as the
 latter, and the first sale doctrine is not relevant to this - the
 infringing copy was not lawfully made under this title.

The US courts disagree with you Hyman.

http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html

In Wells the court granted defendant's motion for acquittal on eight
counts of criminal infringement of the copyright of aerial survey maps
owned by Edgar Tobin. Tobin had licensed 107 of his customers to
manufacture reproductions of his maps for their own use. Defendant was
charged with selling, without authorization, copies of Tobin's
copyrighted maps. The pivotal issue was whether the copies sold by the
defendant were copies which had been the subject of a first sale,
thereby terminating their statutory protection:

. . . If title has been retained by the copyright proprietor, the
copy remains under the protection of the copyright law, and
infringement proceedings may be had against all subsequent possessors
of the copy who interfere with the copyright proprietor's exclusive
right to vend the copyrighted work. If title has passed to a first
purchaser, though, the copy loses the protection of the copyright law
as discussed above. 176 F.Supp. at 633-634.

The court found that there has been no showing on the record that the
copies of the aerial survey maps were not published by a lawful
licensee of the copyright proprietor or that title to these copies was
retained at all times by the copyright proprietor. 176 F.Supp. at
633. Since the Tobin license did not specify that title to the
reproduced maps was to remain in Tobin, title to the maps belonged to
the licensees who, under the first sale doctrine, were free to resell
the maps. The court concluded: Lacking the protection of the
copyright law, there can be no infringement, and defendant should be
acquitted. 176 F.Supp. at 634.

Since the GPL does not specify that title to the copies made is to be
retained by the copyright proprietor, title to the copies belongs to
the licensees who, under the 17 USC 109, is free to distribute the
copies without the authority of the copyright owner.

See the light now silly Hyman?

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
[...]
 The GPL very carefully lays out its restrictions so that they are
 all part of the act of copying . . .

An act of providing the source code is part of the act of copying?

Take your meds Hyman.

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
[...]
 17 USC 27 is no longer the law; the Copyright Act of 1976 went into effect
 on January 1, 1978, after the above ruling, and the first sale doctrine now
 reads differently. Rather than allowing resale of works lawfully obtained
 17 USC 109 allows resale of works lawfully made under this title and that
 is an entirely different kettle of fish, as Omega vs. Costco demonstrated.

See Staff of House Comm. on the Judiciary, 89th Cong., 1st Sess.,
Copyright Law Revision Part 5: 1964 Revision Bill with Discussion 
Comments 66 (Comm.Print 1965) (Barbara Ringer, member of the Copyright
Office's General Revision Steering Committee, stating: The basic
purpose of [Section 109(a)] is to make clear that full ownership of a
lawfully-made copy authorizes its owner to dispose of it freely, and
that this privilege does not extend to copies obtained otherwise than by
sale or other lawful disposition. In other words, if you obtain a copy
by loan or by rental, you are not free to dispose of it freely or to use
it in any way you see fit.). The words under this title were added to
ensure that the Copyright Act itself would be the guide for determining
the validity of a sale. See H.R.Rep. No. 1476, at 79, reprinted in 1976
U.S.C.C.A.N. 5659, 5693 (To come within the scope of section 109(a), a
copy or phonorecord must have been `lawfully made under this title,'
though not necessarily with the copyright owner's authorization. For
example, any resale of an illegally `pirated' phonorecord would be an
infringement, but the disposition of a phonorecord made under the
compulsory licensing provisions of section 115 would not.); S.Rep. No.
473, 94th Cong., 1st Sess. 72 (1975) (containing essentially the same
language); H.R.Rep. No. 83, 90th Cong., 1st Sess. 38 (1967) (same);
S.Rep. No. 982, 93d Cong., 2d Sess. 123 (1974) (same).

In sum, the legislative history of Section 109(a) reveals that the
phrase lawfully made under this title clarifies what constitutes a
first sale for purposes of the first sale doctrine

The phrase essentially means that the copy is not infringing, either
because it was made with the permission of the copyright owner (i.e. 
under license) or it falls within one of the exceptions to the 
copyright owner's reproduction rights.

If one has permission to make lawful copies, one does not need any
additional permission to distribute those copies to the public.

17 USC 109 applies to anyone who is the owner of a particular copy or
phonorecord lawfully made under this title.

You can become the lawful owner of a copy by license, operation of 
law (17 USC 115), gift or similar things that are not a sale of 
material object.

 A copy made for personal use but then distributed has not been lawfully made.

http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html

In Wells the court granted defendant's motion for acquittal on eight
counts of criminal infringement of the copyright of aerial survey maps
owned by Edgar Tobin. Tobin had licensed 107 of his customers to
manufacture reproductions of his maps for their own use. Defendant was
charged with selling, without authorization, copies of Tobin's
copyrighted maps. The pivotal issue was whether the copies sold by the
defendant were copies which had been the subject of a first sale,
thereby terminating their statutory protection:

. . . If title has been retained by the copyright proprietor, the
copy remains under the protection of the copyright law, and
infringement proceedings may be had against all subsequent possessors
of the copy who interfere with the copyright proprietor's exclusive
right to vend the copyrighted work. If title has passed to a first
purchaser, though, the copy loses the protection of the copyright law
as discussed above. 176 F.Supp. at 633-634.

The court found that there has been no showing on the record that the
copies of the aerial survey maps were not published by a lawful
licensee of the copyright proprietor or that title to these copies was
retained at all times by the copyright proprietor. 176 F.Supp. at
633. Since the Tobin license did not specify that title to the
reproduced maps was to remain in Tobin, title to the maps belonged to
the licensees who, under the first sale doctrine, were free to resell
the maps. The court concluded: Lacking the protection of the
copyright law, there can be no infringement, and defendant should be
acquitted. 176 F.Supp. at 634.

Since the GPL does not specify that title to the copies made is to be
retained by the copyright proprietor, title to the copies belongs to
the licensees who, under the 17 USC 109, is free to distribute the
copies without the authority of the copyright owner.

See the light now silly Hyman?

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
[...]
 exactly that, a copy made as permitted by this law. Omega vs.
 Costco resulted in first sale not applying to imported items

Yeah.

http://www.lexology.com/library/detail.aspx?g=41f6d942-54be-48f4-a3a7-b766881d6ebd

During the Costco oral arguments, the Court seemed skeptical of both
sides positions on whether the first sale statute9 (Section 109)
implicitly included a territoriality requirement, repeatedly asking the
lawyers to point out where in the text or legislative history support
could be found for their respective arguments. The Justices appeared to
agree that reading Section 109 to include a territoriality requirement
would effectively incentivize foreign outsourcing or manufacturing
outside the United States, and Congress certainly would not have enacted
Section 109 with such an intent  what earthly sense would it make to
prefer goods that are manufactured abroad over those manufactured in the
U.S. (J. Ginsburg).

On December 13, 2010 the Court issued a per curiam order affirming the
Ninth Circuits ruling against Costco. This order was issued because the
court split 4 to 4 on the question and so by rule the lower court
opinion was affirmed by an equally divided court. This division resulted
after Justice Kagan had recused herself because she had participated as
Solicitor General in submitting a brief to the Court urging it to not
take the case because the decision of the Ninth Circuit was correct. In
effect, the Supreme Courts action left the Ninth Circuits ruling
against Costco undisturbed (i.e., the exhaustion doctrine is subject to
a territoriality requirement), but it provided no clarification or
further precedent to guide lower courts and interested parties. Thus,
the conflicting views about the territorial scope of the exhaustion
doctrine remain unsettled (at least outside of the Ninth Circuit).

http://www.lexology.com/library/detail.aspx?g=c0ff7670-6b42-4846-990a-fa753b0c0cf9

Supreme Court does not answer copyright exhaustion question in Costco

Haynes and Boone LLP Thomas Kelton, Jeff Becker, Purvi J. Patel, Lisa
Garono and David A. Bell USA 

December 17 2010 

Earlier this week, the US Supreme Court issued a split decision and
failed to resolve whether copyrighted materials legally made abroad can
be imported into the U.S. and sold without the express permission of the
copyright owner. See Costco Wholesale Corp. v. Omega S.A., 562 U.S. __
(2010). In other words, it is still up to the nations circuit courts to
decide whether the first sale doctrine extinguishes the rights of a
copyright holder when the goods are made outside of the U.S.

The case came to the Court from the 9th Circuit, which ruled that
copyrighted materials made abroad cannot be imported into the U.S. and
sold without the express permission of the copyright owner. See Omega
S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). After the
split decision at the Supreme Court, the 9th Circuits decision remains
good law within the 9th Circuits jurisdiction, but no nationwide
precedent is set. Other circuit courts have yet to weigh in on the
issue. The 9th Circuits decision and the Supreme Courts decision are
referred to collectively herein as the Costco cases. 

The Costco cases have important ramifications, not only within the 9th
Circuit. Grey market importers may find themselves subject to
successful infringement suits, especially when selling goods within the
9th Circuit. From the other vantage point, the Costco cases provide an
important avenue for copyright holders, such as brand-name
manufacturers, to keep grey market goods out of the country.
Furthermore, because the 9th Circuit includes the entire west coast, the
Costco cases deal a blow to much of the nations grey market activity.
Copyright holders and grey market importers can expect the same question
to come before other circuit courts in the coming years.

Interestingly, the Costco cases treat foreign-manufactured goods
preferentially in comparison to domestically-manufactured goods. In
other words, a lawful first sale does not extinguish a copyright
holders rights when the goods are made abroad; however, the same is not
true for goods produced domestically. Thus, copyright holders gain a
slight advantage by manufacturing goods abroad.

History

The Supreme Court addressed a similar issue in 1998. See Quality King
Distributors Inc., v. L'anza Research International Inc., 523 U.S. 135
(1998). In the Quality King decision, the goods in issue were made in
the U.S., exported abroad by the copyright holder, and then re-imported
into the U.S. by the defendant without the copyright holders
permission. The Supreme Court held that the first sale doctrine
extinguished the rights of the copyright holder. In Quality King, the
Court specifically refused to consider a fact pattern including
foreign-manufactured goods.

In the present case, Omega made and sold its watches in Switzerland
legally. A third party

Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourtof Appeals


Hyman Rosen wrote:
 
 On 12/21/2010 11:59 AM, Alexander Terekhov wrote:
  An act of providing the source code is part of the act of copying?
 
 It's part of the act of copying and distributing. You must

Distributing a copy lawfully made under 17 USC by its owner is an act
under 17 USC 109 and it doesn't require the copyright permission 
at all. Trying to blender these two distinct acts is intellectually
dishonest, Hyman.

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth Circuit Court of Appeals


Hyman Rosen wrote:
 
 On 12/21/2010 12:35 PM, Alexander Terekhov wrote:
  Distributing a copy lawfully made under 17 USC by its owner is an act
  under 17 USC 109 and it doesn't require the copyright permission
  at all.
 
 Distributing a copy that was made under a personal use license
 infringes copyright because lawfully made under this title
 includes the restrictions on use. To realize this, imagine the

You're in denial, Hyman.

http://ftp.resource.org/courts.gov/c/F2/550/550.F2d.1180.76-1141.html

In Independent News, plaintiffs, the distributor, publisher, and
copyright owner of comic books, sought to enjoin the defendant, a
second-hand periodical dealer, from selling comics which plaintiff's
wholesaler had sold for scrap to waste paper dealers, who in turn resold
them to defendant. In upholding the district court's denial of the
injunction, the Third Circuit found, inter alia, that defendant's sale
of the comics did not constitute copyright infringement since plaintiffs
had engaged in a first sale of the comics. The court so held even though
there was a contract between the distributor and the wholesaler that the
wholesaler would dispose of the comics for no other purpose than waste
paper.

In Wells the court granted defendant's motion for acquittal on eight
counts of criminal infringement of the copyright of aerial survey maps
owned by Edgar Tobin. Tobin had licensed 107 of his customers to
manufacture reproductions of his maps for their own use. Defendant was
charged with selling, without authorization, copies of Tobin's
copyrighted maps. The pivotal issue was whether the copies sold by the
defendant were copies which had been the subject of a first sale,
thereby terminating their statutory protection:

. . . If title has been retained by the copyright proprietor, the
copy remains under the protection of the copyright law, and
infringement proceedings may be had against all subsequent possessors
of the copy who interfere with the copyright proprietor's exclusive
right to vend the copyrighted work. If title has passed to a first
purchaser, though, the copy loses the protection of the copyright law
as discussed above. 176 F.Supp. at 633-634.

The court found that there has been no showing on the record that the
copies of the aerial survey maps were not published by a lawful
licensee of the copyright proprietor or that title to these copies was
retained at all times by the copyright proprietor. 176 F.Supp. at
633. Since the Tobin license did not specify that title to the
reproduced maps was to remain in Tobin, title to the maps belonged to
the licensees who, under the first sale doctrine, were free to resell
the maps. The court concluded: Lacking the protection of the
copyright law, there can be no infringement, and defendant should be
acquitted. 176 F.Supp. at 634.

regards,
alexander.

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Re: Jacobsen v Katzer, 535 F.3d 1373 overruled by the US Ninth CircuitCourt of Appeals


Hyman Rosen wrote:
[...]
 Sure. The defendants didn't do any copying, and the first

A copy made under license also falls under 17 USC 109 if/when the
licensor doesn't retain the title to the copy made.

Feel free to make a single a copy of my work.

This license has a scope limitation (only one copy). Note that the
licensor doesn't retain the title to the copy made.

The copy made under the license falls under first sale.

 sale doctrine did away with restrictions on redistribution.
 
  The pivotal issue was whether the copies sold by the defendant were
   copies which had been the subject of a first sale, thereby terminating
   their statutory protection:
 
 Wells was decided before the language of lawfully made under
 this title was law.

That does not matter. Wells has nothing to do with importation of copies
made abroad. There is no connection to the recent Omega case. 

http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_109

The drafters provided some clear examples and explanations regarding
contract v. copyright:

A library that has acquired ownership of a copy is entitled to lend it
under any conditions it chooses to impose. This does not mean that
conditions on future disposition of copies or phonorecords, imposed by a
contract between their buyer and seller, would be unenforceable between
the parties as a breach of contract, but it does mean that they could
not be enforced by an action for infringement of copyright.

regards,
alexander.

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Re: Significance of the GP licence.


David Kastrup wrote:
[...]
 You won't find any.  And that's the point.

Since it is YOU GNUtians who are crying copyright violation,
copyright violation... which is a tort and on a large scale it is even
a crime, IT'S UP TO YOU TO PROVE THE CLAIM YOU IDIOT.

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

It is a logical fallacy to presume that mere lack of evidence of
innocence of a crime is instead evidence of guilt. Similarly, mere lack
of evidence of guilt cannot be taken as evidence of innocence. For this
reason (among others), Western legal systems err on the side of caution.
Simply the act of taking a defendant before a court is not adequate
evidence to presume anything. Courts require evidence of guilt to be
presented first, adequate for the court to find that the charge has been
substantiatedi.e., that the prosecution's evidential burden has been
metand only after this burden is met is the defense obliged to present
counter-evidence of innocence. If the burden of proof is not met, that
does not imply that the defendant is innocent. Hence, in such a case,
the defendant is found not guilty, except in Scotland, where the jury
also has the option to return a verdict of not proven.

Also, as a hypothetical example of an argument from personal
incredulity, defined above, suppose someone were to argue:

- I cannot imagine any way for Person P to have executed action X
without committing a crime Y

- Therefore, Person P must be guilty of crime Y.

Merely because the person making the argument cannot imagine how
scenario A might have happened does not necessarily mean that the
person's preferred conclusion (scenario B) is correct. As with other
forms of the argument from ignorance, the arguer in this instance has
arrived at a conclusion without any evidence supporting the preferred
hypothesis, merely for lack of being able to imagine the alternative.

The same principles of logic apply to the civil law, although the
required burdens of proof generally are different. As well, these
principles of logic apply to the introduction of a given component of a
legal case by either a complainant or a defendant. That is, the mere
lack of evidence in favor of a proposition put forth by a party in a
legal proceeding (e.g., the assertion she couldn't have left the house
and returned in time to do X... is offered without evidence in support)
would not properly be taken as evidence in favor of an alternative
explanation (e.g., she did leave the house and return in time to do
X...).

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


Hyman Rosen wrote:
 
 On 5/5/2010 8:11 AM, RJack wrote:
  Please provide links to those US federal judges who *do not* believe
  the terms of the GPL can be ignored. I await with 'bated breath for
  your documentation.
 
 Sure, here you are:
 http://scholar.google.com/scholar_case?case=13584730711160488510
  PROGRESS SOFTWARE CORPORATION, et al., Plaintiffs,
  v.
  MYSQL AB, et al., Defendants.
  ORDER
  SARIS, District Judge.
  ...
  With respect to the General Public License (GPL), MYSQL has
  not demonstrated a substantial likelihood of success on the
   

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

[...]
  I am not persuaded based on this record that the release of the
  Gemini source code in July 2001 didn't cure the breach.
   ^^

Yes, the case was about alleged contract breach, you retard. NOT
COPYRIGHT INFRINGEMENT, YOU MORON.

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
(COUNT VIII Breach of Contract (GPL License))

  COUNT VIII 
  Breach of Contract (GPL License)
  ^^


Take your meds Hyman, take your meds.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


Hyman Rosen wrote:
 
 On 5/5/2010 10:18 AM, Alexander Terekhov wrote:
  the case was about alleged contract breach
 
 It doesn't matter what the case was about. Your fellow crank

The fact that Judge Saris *rejected the plea for injunction* regarding
alleged breach of the GPL while she was not supposed/allowed to rule
*sua sponte* that certain provisions of the GPL are unenforceable is NOT
a proof that she believes that certain terms of the GPL can NOT be
ignored. Got it now, retard?

Go contact her asking to clarify her ruling *rejected the plea for
injunction* for you utter idiot.

http://www.mad.uscourts.gov/boston/saris.htm

Take your meds Hyman, take your meds.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


David Kastrup wrote:
[...]
 A(iv): Progress/NuSphere violated the GPL License and thus, their rights
 under the GPL were automatically terminated.
 
 B Primarily and permanently enjoin
 (iii) Progress/Nusphere from  copying, modifying, sublicensing or
 distributing the MySQL program.

DENIED

http://scholar.google.com/scholar_case?case=13584730711160488510

Uh moron dak.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


David Kastrup wrote:
[...]
 If she considers a breach ...

She did NOT rule that there was a breach, you retard. She ruled quite
the opposite:

With respect to the General Public License (GPL), MYSQL has
not demonstrated a substantial likelihood of success on the
merits or irreparable harm.

HAS NOT DEMONSTRATED

*HAS NOT DEMONSTRATED*, YOU IDIOT.

And yes, the case was about alleged contract breach, you retard. NOT
COPYRIGHT INFRINGEMENT, YOU MORON.

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
(COUNT VIII Breach of Contract (GPL License))

  COUNT VIII 
  Breach of Contract (GPL License)
  ^^


regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
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Re: Significance of the GP licence.

Sonny! Uncle Hasler has spoken! 

John Hasler wrote:
 
 David Kastrup writes:
  Award compensatory and _punitive_ damages [...] (punitive damages
  for contract violation of a contract without punitive terms?)
 
 Presumably based on the noncontract claims.

MySQL's case/claim *regarding the GPL* was a contract case, NOT
COPYRIGHT INFRINGEMENT. MySQL complained about other non-contract (tort)
matters as well in addition to the GPL contract claim.

Judge Saris was not supposed/allowed to rule sua sponte that certain
provisions of the GPL are unenforceable and she simply denied the plea
for injunction regarding alleged breach of the GPL on other grounds.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


Hyman Rosen wrote:
 
 On 5/5/2010 10:56 AM, Alexander Terekhov wrote:
  DENIED
  http://scholar.google.com/scholar_case?case=13584730711160488510
 
 That's because the standards required for a preliminary
 injunction are high. In the judge's words:
 http://scholar.google.com/scholar_case?case=13584730711160488510

With respect to the General Public License (GPL), MYSQL has
not demonstrated a substantial likelihood of success on the
merits or irreparable harm.

HAS NOT DEMONSTRATED

*HAS NOT DEMONSTRATED*, YOU IDIOT.

And yes, the case was about alleged contract breach, you retard. NOT
COPYRIGHT INFRINGEMENT, YOU MORON.

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
(COUNT VIII Breach of Contract (GPL License))

  COUNT VIII 
  Breach of Contract (GPL License)
  ^^


Take your meds Hyman, take your meds.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Significance of the GP licence.


Hyman Rosen wrote:
 
 On 5/5/2010 10:52 AM, Alexander Terekhov wrote:
  rejected not allowed unenforceable NOT a proof can NOT be ignored
 
 That's enough multiple negatives to open a wormhole to the crank
 universe of twist and spin. Your fellow crank asked for a judge
 who does not believe the terms of the GPL can be ignored. I gave
 him a judge who does not believe the terms of the GPL can be
 ignored (I am not persuaded ... that the release of the ...
 source code ... didn't cure the breach.) None of your twisting

She is simply saying that the GPL provision of automatic termination
on a slightest breach is UNENFORCEABLE you idiot.

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
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Re: Significance of the GP licence.


David Kastrup wrote:
 
 Alexander Terekhov terek...@web.de writes:
 
  David Kastrup wrote:
  [...]
  If she considers a breach ...
 
  She did NOT rule that there was a breach, you retard. She ruled quite
  the opposite:
 
  With respect to the General Public License (GPL), MYSQL has
  not demonstrated a substantial likelihood of success on the
  merits or irreparable harm.
 
 You are confusing the decision about the preliminary injunction with the

I'm confusing noting, silly dak.

With respect to the General Public License (GPL), MYSQL has
not demonstrated a substantial likelihood of success on the
merits or irreparable harm.

HAS NOT DEMONSTRATED

*HAS NOT DEMONSTRATED*, YOU IDIOT.

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

And yes, the case was about alleged contract breach, you retard. NOT
COPYRIGHT INFRINGEMENT, YOU MORON.

http://www.groklaw.net/pdf/MySQLcounterclaim.pdf
(COUNT VIII Breach of Contract (GPL License))

  COUNT VIII 
  Breach of Contract (GPL License)
  ^^


regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

--
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Re: Justice draws nigh

RJack wrote:

RJack wrote:
All this bantering about prior cases is moot.

The SFLC has just filed a request for a pre-conference motion for
summary judgment against Westinghouse. The near future now holds all the
answers about GPL enforcement. I'm sure Judge Scheindlin will suffers no
fools in this action.

Seems Westinghouse has undergone an assignment for the benefit of
creditors in California.

http://bankruptcy.cooley.com/2008/03/articles/the-financially-troubled-compa/assignments-for-the-benefit-of-creditors-simple-as-abc/

SFLC rats footnoted it:

On April 27, Plaintiffs attempted to confer with counsel for
Westinghouse regarding the discovery request, but were told that
Westinghouse has undergone an assignment for the benefit of creditors in
California and is unlikely to continue to defend itself in this matter

is unlikely to continue to defend itself in this matter

So when the defendant told SFLC rats that the defendant is unlikely to
continue to defend itself in this matter SFLC rats contemplate two
motions:

Plaintiffs in this action for copyright infringement write to request a
pre-motion conference in contemplation of two motions against defendant
Westinghouse Digital Electronics, LLC (Westinghouse), The first
contemplated motion is for summary judgment of infringement and an award
of appropriate remedies. The second contemplated motion is to compel
discovery. Plaintiffs propose a single pre-motion conference be held
during the week of May 17, or otherwise at the Court's earliest
convenience.

LOL!

SFLC rats contemplate two motions...

http://www.terekhov.de/BestBuy-108.pdf

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

Re: Significance of the GP licence.


Hyman Rosen wrote:
 
 On 5/5/2010 2:26 PM, RJack wrote:
  This is an identical situation to those who claim nonexistent GPL
  settlement victories.
 
 Yes, it is. In both situations anti-GPL cranks cannot

http://opensource.actiontec.com/mi1424wr/actiontec_opensrc_mi424wr-rev-e_fw-20-9-0.tgz

 bring themselves to believe what has long been obvious
 to anyone else, so they twist and spin to avoid facing
 the truth.

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

Commonly in an argument from ignorance or argument from personal
incredulity, the speaker considers or asserts that something is false,
implausible, or not obvious to them personally and attempts to use this
gap in knowledge as evidence in favor of an alternative view of his or
her choice. Examples of these fallacies are often found in statements of
opinion which begin: It is hard to see how..., I cannot understand
how..., or it is obvious that... (if obvious is being used to
introduce a conclusion rather than specific evidence in support of a
particular view)

regards,
alexander.

P.S. Every computer program in the world, BusyBox included, exceeds the
originality standards required by copyright law.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Shoplifting, concealment, liability presumption

For stupid dak, in English now.

Here's a typical shoplifting statute.

http://law.justia.com/missouri/codes/t36/537125.html
(§ 537.125.  Shoplifting--detention of suspect by merchant--liability
presumption.)

537.125. 1. As used in this section: 

(1) Mercantile establishment means any mercantile place of business
in, at or from which goods, wares and merchandise are sold, offered for
sale or delivered from and sold at retail or wholesale; 

(2) Merchandise means all goods, wares and merchandise offered for
sale or displayed by a merchant; 

(3) Merchant means any corporation, partnership, association or person
who is engaged in the business of selling goods, wares and merchandise
in a mercantile establishment; 

(4) Wrongful taking includes stealing of merchandise or money and any
other wrongful appropriation of merchandise or money. 

2. Any merchant, his agent or employee, who has reasonable grounds or
probable cause to believe that a person has committed or is committing a
wrongful taking of merchandise or money from a mercantile establishment,
may detain such person in a reasonable manner and for a reasonable
length of time for the purpose of investigating whether there has been a
wrongful taking of such merchandise or money. Any such reasonable
detention shall not constitute an unlawful arrest or detention, nor
shall it render the merchant, his agent or employee, criminally or
civilly liable to the person so detained. 

3. Any person willfully concealing unpurchased merchandise of any
mercantile establishment, either on the premises or outside the premises
of such establishment, shall be presumed to have so concealed such
merchandise with the intention of committing a wrongful taking of such
merchandise within the meaning of subsection 1, and the finding of such
unpurchased merchandise concealed upon the person or among the
belongings of such person shall be evidence of reasonable grounds and
probable cause for the detention in a reasonable manner and for a
reasonable length of time, of such person by a merchant, his agent or
employee, in order that recovery of such merchandise may be effected,
and any such reasonable detention shall not be deemed to be unlawful,
nor render such merchant, his agent or employee criminally or civilly
liable. 

4. Any merchant, his agent or employee, who has reasonable grounds or
probable cause to believe that a person has committed a wrongful taking
of property, as defined in this section, and who has detained such
person and investigated such wrongful taking, may contact law
enforcement officers and instigate criminal proceedings against such
person. Any such contact of law enforcement authorities or instigation
of a judicial proceeding shall not constitute malicious prosecution, nor
shall it render the merchant, his agent or employee criminally or
civilly liable to the person so detained or against whom proceedings are
instigated. 

(L. 1961 p. 571 ?? 1, 2, 3, A.L. 1985 H.B. 225) 

(1972) This section adds to previously existing law a presumption that
the willful concealment of property supplies the intent to steal. It is
still, however, a jury issue as to whether there existed a willful
concealment. The presumption is rebuttable by evidence such as that
accused placed the tape recorder batteries in his pocket to aid in
inspecting a magazine on a rack, and that he had no intent to steal.
Schwane v. Broger Company (A.), 480 S.W.2d 113. 

Here's more:

http://www.njshopliftinglawyer.com/lawyer-attorney-1426510.html

Concealment. The shoplifting statute is also intended to address a
person purposely concealing merchandise offered for sale by a merchant.
Conceal means to obscure an object such that it is not visible through
ordinary observation. The concealment must be undertaken with the intent
to consummate a theft. Intent is presumed where an individual conceals
merchandise yet to be paid for. This presumption may be rebutted through
presentation of evidence manifesting innocence.

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Shoplifting, concealment, liability presumption

Uh retard dak. You wrote:

But the point is: until I pass the cash register, there is no way of
knowing whether I had merely been employing my pocket because I was
running out of space in my hands or because I intended to steal
something.

That's not an evidence to rebutt presumption of intent to consummate a
theft, stupid.

In terms of German law, according to BGH:

http://www.gutefrage.net/frage/ist-das-ladendiebstahl

Sobald ein Täter eine Ware in seine Kleidung oder in eine mitgeführte
Tasche gesteckt hat, ist sein Gewahrsam begründet und damit der
Diebstahl vollendet.

Got it now?

And, BTW, Gewahrsam above isn't confinement but rather

http://de.wikipedia.org/wiki/Gewahrsam

as in

http://de.wikipedia.org/wiki/Besitz

stupid dak.

And the particular sentence makes little enough sense:

As soon as a perpetrator puts an item into his clothes or a carried
bag, his confinement is justified, and thus the theft is completed.

That's shaking the order and dependencies of the acts up rather
absurdly.

LMAO!!!

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: From the Best Buy et. al. case

Best Buy squad arrived.

03/03/2010 56  NOTICE OF APPEARANCE by David Leichtman on behalf of Best
Buy Co., Inc. (Leichtman, David) (Entered: 03/03/2010) 
03/03/2010 57  NOTICE OF APPEARANCE by Hillel Ira Parness on behalf of
Best Buy Co., Inc. (Parness, Hillel) (Entered: 03/03/2010) 
03/03/2010 58  NOTICE OF APPEARANCE by Oren Dov Langer on behalf of Best
Buy Co., Inc. (Langer, Oren) (Entered: 03/03/2010) 

http://www.rkmc.com/David-Leichtman.htm
http://www.rkmc.com/Hillel-I.-Parness.htm
http://www.rkmc.com/Oren-Langer.htm

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Shoplifting, concealment, liability presumption


David Kastrup wrote:
[...]
 Whatever.  When quoting isolated sentences, you better pick those with
 grammar reflecting what you consider their meaning.

LOL. Dak are you really sure that your German is more correct than the
German of http://www.bundesgerichtshof.de?

Go to doctor, silly dak.

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Shoplifting, concealment, liability presumption


David Kastrup wrote:
[...]
 particular sentence, _and_ your attribution to the BGH as source is
 accurate (for which I don't see any evidence but consider possible),

BGH Beschluss vom 06.10.1961 (2 StR 289/61) 
NJW 1961, 2266; BGHSt 16, 271

http://dejure.org/dienste/vernetzung/rechtsprechung?Gericht=BGHDatum=06.10.1961Aktenzeichen=2%20StR%20289%2F61

 I will agree that _if_ it originated from the BGH 

http://www.google.com/#hl=ensource=hpq=%22sein+Gewahrsam%22

Go to doctor, silly dak.

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: Shoplifting, concealment, liability presumption

Dak, the ruling I cited is part of
http://de.wikipedia.org/wiki/Staatsexamen for prosecutors and counsels
(both may become judges).

Go to doctor, silly dak.

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Re: From the Best Buy et. al. case

Judge Shira Scheindlin defies her own order.

01/07/2010 19  STIPULATION AND ORDER EXTENDING TIME OF DEFENDANT GCI
TECHNOLOGIES CORPORATION TO RESPOND TO THE COMPLAINT, GCI Technologies
Corporation answer due 3/8/2010. No further extensions for this, or any
defendant in this action, will be granted. (Signed by Judge Shira A.
Scheindlin on 1/6/10) (cd) (Entered: 01/07/2010) 

 No further extensions for this, or any defendant in this action,
will be granted. 

v.

03/05/2010 60  STIPULATED ORDER FOR EXTENSION OF TIME FOR DEFENDANT
SAMSUNG ELECTGRONICS AMERICA, INC. (SAMSUNG) TO FILE ITS ANSWER, FOR
PLAINTIFFS AND SAMSUNG TO SERVE THEIR INITIAL DISCLOSURES AND TO MAKE
INITIAL DISCOVERY REQUESTS: Samsung shall file its answer in this cause
to March 22, 2010 from the current due date of 3/8/10. Plaintiffs and
defendant Samsung agree to extend the date for their exchange of initial
disclosures to 3/22/10 from the current due date of 3/22/10 and further
stipulate and agree to extend the date by two weeks to 4/5/10 for them
to make initial discovery requests of one anther. (Signed by Judge Shira
A. Scheindlin on 3/5/10) (dle) (Entered: 03/08/2010) 

Shame on Judge Shira Scheindlin.

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Best Buy countersues SFLC gang

Best Buy Co., Inc. (Best Buy), erroneously sued in place of Best Buy
Stores, L.P. and BestBuy.Com, LLC, answers Software Freedom Conservancy,
Inc. and Erik Andersens (Plaintiffs) Original Complaint (Complaint)
as follows:

[... snip answer ...]

COUNTERCLAIMS

Defendant/Counterclaimant Best Buy for its separate counterclaims
against Plaintiffs Software Freedom Conservancy, Inc. and Erik Andersen
states and alleges as follows:

1. This is an action for declaratory judgment, together with such
further relief based thereon as may be necessary or proper, pursuant to
the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. There
is an actual controversy between Best Buy and Plaintiffs arising under
United States copyright laws, Title 17 of the United States Code.

2. The subject matter jurisdiction of this Court is founded upon Title
28, United States Code §§ 1331, 1338(a), 2201 and 2202.

3. Best Buy is a Minnesota corporation with its principal place of
business at 7601 Penn Ave. South, Richfield, Minnesota 55423.

4. Software Freedom Conservancy, Inc. alleges that it is a
not-for-profit New York corporation with its principal place of business
at 1995 Broadway, 17th Fl., New York, New York 10023.

5. Erik Andersen alleges that he has a residence in Springville, Utah.

6. Mr. Anderson alleges that he authored, developed and owns the
copyrights in a computer program called BusyBox.

7. Software Freedom Conservancy, Inc. alleges that it is a copyright
enforcement agent for Mr. Andersen with respect to BusyBox.

8. Mr. Andersen and Software Freedom Conservancy, Inc. (Plaintiffs)
allege that Best Buy has infringed Mr. Andersens alleged copyrights in
BusyBox.

FIRST COUNTERCLAIM
DECLARATORY JUDGMENT OF NON-INFRINGEMENT

9. Best Buy restates and realleges each of the allegations set forth in
the Counterclaim paragraphs 1-8 above.

10. By filing the instant Complaint, Plaintiffs have purported to assert
a claim for copyright infringement by Best Buy of copyrights in BusyBox.

11. Best Buy has not infringed any copyrights in BusyBox.

12. Best Buy is entitled to judgment that it has not infringed any
copyrights in BusyBox.

JURY DEMAND

13. Best Buy requests a jury trial on all issues triable of right by a
jury.

PRAYER FOR RELIEF

WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
favor against Plaintiffs/Counterclaimants as follows:

1. Dismissing Plaintiffs cause of action with prejudice and on the
merits;

2. Declaring that Best Buy has not infringed the alleged copyrights in
BusyBox;

3. Awarding Best Buy its costs, including reasonable attorneys fees,
incurred in connection with this matter; and

4. Awarding such other relief as this Court deems just and equitable.

Dated: New York, New York Respectfully submitted,
March 8, 2010
/s/ David Leichtman
David Leichtman (DL-7233)
dleicht...@rkmc.com

regards,
alexander.

P.S. I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

P.P.S. Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress.

Hyman Rosen hyro...@mail.com The Silliest GPL 'Advocate'

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Bosch says the GPL is not enforceable