Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 4:23 PM, RJack wrote:
Since you and Hyman are incapable of understanding the meaning and 
operation of a "condition precedent" as used in copyright 
contracts, you will forever remain confused concerning licensing 
fundamentals.


It is you who are incapable of understanding it, as demonstrated by 
the fact that a court sees things our way: 
 The clear 
language of the Artistic License creates conditions to protect the 
economic rights at issue in the granting of a public license. These 
conditions govern the rights to modify and distribute the computer 
programs and files included in the downloadable software package.


I had no idea that "GPL" was an acronym for "Artistic License".
Moving the goalposts again Hyman? ROFL.

Not only are DAK and Hyman are incapable of understanding the meaning
and operation of a "condition precedent" as used in copyright contracts,
they are utterly confused about the difference between "Article III"
standing and "statutory" standing.

GPL sec. 2(b) is not a condition precedent and an author who releases
source code under the GPL has no Article III standing to enforce it.

The GPL is a purported copyright license that is preempted by 17 USC
sec. 301(a) and is unenforceable under the common law of contracts and
provides no Article III standing for users.

Sincerely,
RJack :)

Hyman Rosen: "I never lose I just moove the goalposts."
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
> 
> RJack  writes:
> 
> > David Kastrup wrote:
> >
>  The GPL legally establishes a heterogenuos pool of software.
> >
> > The GPL legally establishes a heterogeneous pool of whacked out,
> > delusional nut-jobs.

"The GPL legally establishes a heterogeneous pool of whacked out,
delusional nut-jobs. It's the glue that binds zealots into a tightly
packed socialist amalgam. Crazies of every order are bound in an
unenforceable social contract."

> 
> You are not that heterogeneous.
> 
> --
> David Kastrup

David Kastrup back in 1999:

http://www.mail-archive.com/linux-m...@senator-bedfellow.mit.edu/msg01650.html

--
Subject: Re: GNU reeks of Communism
Date: 01 May 1999 11:53:51 +0200

Don Bashford <[EMAIL PROTECTED]> writes:

> Jim Brooks <[EMAIL PROTECTED]> writes:
> 
> > GNU reeks of Commumism.  I'll tell you why:
>   [  ]
> > P.S. This is intended as humor (and a troll) ;-)
> 
> This is dead serious, and is intended as a provocation >:(
> 
> Although your reasons why are ridiculous, you are right that GNU is
> communist.  And there's something even worse: the writing of
> software is an activity with very strong instrinsic communist
> tendencies.

The main difference to the variants of communism typical Americans
associate with the devil, however, is that participation in the GNU
communism is entirely voluntary and works on a case-by-case basis for
software.  The difference between GPLed and lighter licensed free
software is that in order to exploit a particular piece of GPLed
software, you have to play by the rules under which the software was
created.

-- 
David Kastrup Phone:
+49-234-700-5570
Email: [EMAIL PROTECTED]   Fax: +49-234-709-4209
Institut für Neuroinformatik, Universitätsstr. 150, 44780 Bochum,
Germany
--

Face the truth dak: you ARE a whacked out, delusional nut-job.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > Hyman Rosen wrote:
> >>
> >> On 4/13/2010 2:22 PM, Alexander Terekhov wrote:
> >> > Copies lawfully made fall under 17 USC 109
> >>
> >> Certainly.
> >
> > Right, to wit:
> >
> > http://www.terekhov.de/Samsung-Answer.pdf
> >
> > "As a separate and distinct Twelfth Affirmative Defense and each
> > claim for relief alleged therein, Defendant alleges that Plaintiffs’
> > claim for copyright infringement is barred under at least the
> > provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any
> > copies alleged to be infringing were, therefore, lawfully made. "
> 
> You really have to stop confusing the arguments of either party as being
> legally relevant before the court says so.

Samsung listed TWENTY (20) legally relevant reasons why SFLC's complaint
is legally irrelevant, silly.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > David Kastrup wrote:
> > [...]
> >>   if you choose not to comply with
> >> licensing conditions, the license just does not apply.
> >
> > I'm just curious, what "automatically terminate" does
> >
> > http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf
> >
> > then talking about, in your view, oh paragon of GNUtardiness dak?
> 
> Narrows down the number of silly excuses one has to deal with in court.
> Also gives some punch to deal with "feet-draggers" who come into
> compliance once in court, but before settlement.  Without such a clause,
> they would have little incentive to settle and pay the court costs of
> the plaintiff.
> 
> I consider this clause somewhat problematic, since one can't terminate a
> license before it has been established.  If a defendant wants to claim
> copyright violation (for example, because the distributed code was put
> there by an unauthorized party), he might end up facing punishment for
> infringement (possibly stopping redistribution as one remedy) without
> paying the plaintiffs legal expenses.
> 
> However, without such a clause, chances for monetary retrieval of such
> costs appear even worse.  It's not a perfect shot, but probably better
> than none at all.

What are you smoking, dak?

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > David Kastrup wrote:
> > [...]
> >> A promise to licensees availing themselves of the license.  Without any
> >
> > Uh retard dak.
> >
> > http://www.gnu.org/licenses/gpl.html
> >
> > "by [blah-blah], you indicate your acceptance of this License"
> >
> > http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance
> >
> > "It may be implied from the construction of the contract that the
> > offeror has dispensed with the requirement of communication of
> > acceptance ... acceptance may be inferred from conduct"
> 
> Yeah, you got it.  If the conduct does not show an attempt to honor any
> of the licensing conditions, non-acceptance has to be assumed.

Sez who?

> 
> If, in contrast, we have an incomplete attempt of compliance (often
> characterizable as "dragging their feet"), we are talking about
> non-compliance instead.

Aha, since in the land of GNU only partial compliance is non-compliance
it follows that complete incompliance is compliance!

WOW.

Go to doctor, silly dak.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
___
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:23 PM, RJack wrote:
> > Since you and Hyman are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined w

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:23 PM, RJack wrote:
> > Since you and Hyman are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined w

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:22 PM, RJack wrote:
> > Since you and Hyman are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined w

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:21 PM, RJack wrote:
> > Since you and Hyman are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined w

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:19 PM, RJack wrote:
> > Since you and DAK are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined wit

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:16 PM, RJack wrote:
> > Provided infringement occurs. This is not the case with the GPL.
> 
> Infringement occurs when GPL-covered code is copied and
> distributed without compliance with the GPL.
> 
> > Since you and DAK are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions ar

Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:14 PM, RJack wrote:
> > Since you and Hyman are incapable of understanding the meaning and
> > operation of a "condition precedent" as used in copyright contracts,
> > you will forever remain confused concerning licensing fundamentals.
> 
> It is you who are incapable of understanding it, as demonstrated
> by the fact that a court sees things our way:
> 

"Under California contract law..."

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

--- 
This is not legal advice... 

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

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

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

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

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

The CAFC's Jacobsen decision unwittingly attempts to radically change 
the risks of licensing software. The CAFC states that any failure to 
comply with a license provision that the license even generally calls 
a "condition" is an infringement rather than a breach. Thus, any 
licensee that violates the "conditions" of a license, even if 
unintentional, is subject to infringement damages. If the CAFC's 
decision stands and is generally followed in the Circuits and state 
courts, (which it should not be), every license from this point 
forward will need to clearly state which, if any, restrictions are 
"conditions precedent" and which restrictions are merely covenants 
(all other restrictions). Moreover, the provisions that are 
conditions precedent will need to be defined w

Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> Hyman Rosen wrote:
>> 
>> On 4/13/2010 2:22 PM, Alexander Terekhov wrote:
>> > Copies lawfully made fall under 17 USC 109
>> 
>> Certainly. 
>
> Right, to wit:
>
> http://www.terekhov.de/Samsung-Answer.pdf
>
> "As a separate and distinct Twelfth Affirmative Defense and each
> claim for relief alleged therein, Defendant alleges that Plaintiffs’
> claim for copyright infringement is barred under at least the 
> provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
> copies alleged to be infringing were, therefore, lawfully made. "

You really have to stop confusing the arguments of either party as being
legally relevant before the court says so.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
> [...]
>>   if you choose not to comply with
>> licensing conditions, the license just does not apply.
>
> I'm just curious, what "automatically terminate" does
>
> http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf
>
> then talking about, in your view, oh paragon of GNUtardiness dak?

Narrows down the number of silly excuses one has to deal with in court.
Also gives some punch to deal with "feet-draggers" who come into
compliance once in court, but before settlement.  Without such a clause,
they would have little incentive to settle and pay the court costs of
the plaintiff.

I consider this clause somewhat problematic, since one can't terminate a
license before it has been established.  If a defendant wants to claim
copyright violation (for example, because the distributed code was put
there by an unauthorized party), he might end up facing punishment for
infringement (possibly stopping redistribution as one remedy) without
paying the plaintiffs legal expenses.

However, without such a clause, chances for monetary retrieval of such
costs appear even worse.  It's not a perfect shot, but probably better
than none at all.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
> [...]
>> A promise to licensees availing themselves of the license.  Without any
>
> Uh retard dak.
>
> http://www.gnu.org/licenses/gpl.html
>
> "by [blah-blah], you indicate your acceptance of this License"
>
> http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance
>
> "It may be implied from the construction of the contract that the
> offeror has dispensed with the requirement of communication of
> acceptance ... acceptance may be inferred from conduct"

Yeah, you got it.  If the conduct does not show an attempt to honor any
of the licensing conditions, non-acceptance has to be assumed.

If, in contrast, we have an incomplete attempt of compliance (often
characterizable as "dragging their feet"), we are talking about
non-compliance instead.

Which of the two is in question might just be resolved in discovery.  In
the common case of a settlement and coming into compliance and absent of
additional interests/penalties, the resolution may never be done.

In a typical case, both complaint and defense will list arguments for
both of these possibilities.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:23 PM, RJack wrote:

Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:23 PM, RJack wrote:

Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:22 PM, RJack wrote:

Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:21 PM, RJack wrote:

Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
___
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:19 PM, RJack wrote:

Since you and DAK are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
___
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:16 PM, RJack wrote:

Provided infringement occurs. This is not the case with the GPL.


Infringement occurs when GPL-covered code is copied and
distributed without compliance with the GPL.


Since you and DAK are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
___
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:14 PM, RJack wrote:

Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.


It is you who are incapable of understanding it, as demonstrated
by the fact that a court sees things our way:

The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package.
___
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 3:52 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in this case are
not first-sale copies, and therefore the first-sale doctrine does not
give them permission to do so in violation of the GPL.



Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 3:50 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in this case are
not first-sale copies, and therefore the first-sale doctrine does not
give them permission to do so in violation of the GPL.


Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 2:26 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in this case are
not first-sale copies, and therefore the first-sale doctrine does not
give them permission to do so in violation of the GPL.



Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 1:34 PM, Alexander Terekhov wrote:

http://www.gnu.org/licenses/gpl.html "by [blah-blah], you indicate
your acceptance of this License" 
http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance



"It may be implied from the construction of the contract that the 
offeror has dispensed with the requirement of communication of 
acceptance ... acceptance may be inferred from conduct"


If someone copies and distributes GPL-covered code, it may be assumed
that he accepts the GPL since he has no other permission to do so. If
he wishes to claim that he did not accept the GPL, that's fine. He
has then infringed on the copyrights of the covered work.


17 U.S.C. § 109(a)


The defendants are not distributing first-sale copies. They are
copying and distributing GPL-covered works without complying with the
GPL, and are therefore infringing on the copyright of the covered
works.



Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 1:25 PM, Alexander Terekhov wrote:
I'm just curious, what "automatically terminate" does 
http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf



then talking about, in your view, oh paragon of GNUtardiness dak?


What it says: 




Thus, once each Defendant made a distribution that did not comply
with the License, that Defendant lost any and all right to copy,
modify, or distribute BusyBox. Any copying, modification, or
distribution of BusyBox after that time by each Defendant was and is
without Plaintiffs' permission.


Since you and DAK are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 12:32 PM, Alexander Terekhov wrote:

The contract laws recognize a concept called "efficient breach"
which *encourages* breach of (enforcable) obligations if it's
economically efficient to do so.


However, copyright law provides for injunctions to prevent ongoing
infringement, so it does not matter if it would be more beneficial
for the infringers to continue infringing. They will be prevented
from doing so.


 § 502. Remedies for infringement: Injunctions (a) Any court having
jurisdiction of a civil action arising under this title may, subject
to the provisions of section 1498 of title 28, grant temporary and
final injunctions on such terms as it may deem reasonable to prevent
or restrain infringement of a copyright.


Provided infringement occurs. This is not the case with the GPL.

Since you and DAK are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

David Kastrup wrote:

Alexander Terekhov  writes:


Hyman Rosen wrote:

On 4/13/2010 12:02 PM, Alexander Terekhov wrote:

Implicit in a nonexclusive copyright license is the promise not
to sue for copyright infringement.

But it is only an anti-GPL crank who would believe that he could
accept the permissions of a license but not its obligations.

The contract laws recognize a concept called "efficient breach"
which *encourages* breach of (enforcable) obligations if it's
economically efficient to do so.  Compliance with license/contract
obligations is almost always voluntary -- if you choose not to
comply, then you don't have to. You merely have to compensate the
non-breaching party for his expectancy interest. Hint: damages.


That's the case with a contract.  But if you choose not to comply
with licensing conditions, the license just does not apply.



Since you and Hyman are incapable of understanding the meaning and
operation of a "condition precedent" as used in copyright contracts,
you will forever remain confused concerning licensing fundamentals.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 3:52 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in
this case are not first-sale copies, and therefore
the first-sale doctrine does not give them permission
to do so in violation of the GPL.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 3:50 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in
this case are not first-sale copies, and therefore
the first-sale doctrine does not give them permission
to do so in violation of the GPL.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 2:26 PM, Alexander Terekhov wrote:
> > 17 U.S.C. § 109(a)
> 
> The copies made and distributed by the defendants in
> this case are not first-sale copies, and therefore

http://www.terekhov.de/Samsung-Answer.pdf

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

Copies lawfully made fall under 17 USC 109 (fair use copies are also
lawfully made but distribution of such copies is subject to fair use
analysis just like making of such copies), silly Hyman.

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
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too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 2:23 PM, Alexander Terekhov wrote:
> > How could one possibly lose something that
>  > "the license just does not apply"
> 
> The SFLC's position is that once a GPL-covered work has
> been copied and distributed in violation of the GPL, the
> infringer no longer has permission to copy and distribute
> the covered work at all, even if he subsequently wishes
> to comply with the GPL.

LOL.

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 11:02 AM, Alexander Terekhov wrote:
> > With a license, however, the terms and covenants of the license
>  > establish the applicable rules.
> 
> Precisely.

And the contract laws (not the copyright act) provide remedies for
breach of established (enforcable/valid) rules you idiot.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 2:22 PM, Alexander Terekhov wrote:
> > Copies lawfully made fall under 17 USC 109
> 
> Certainly. 

Right, to wit:

http://www.terekhov.de/Samsung-Answer.pdf

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 2:26 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The copies made and distributed by the defendants in
this case are not first-sale copies, and therefore
the first-sale doctrine does not give them permission
to do so in violation of the GPL.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 2:23 PM, Alexander Terekhov wrote:

How could one possibly lose something that

> "the license just does not apply"

The SFLC's position is that once a GPL-covered work has
been copied and distributed in violation of the GPL, the
infringer no longer has permission to copy and distribute
the covered work at all, even if he subsequently wishes
to comply with the GPL.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 2:22 PM, Alexander Terekhov wrote:

Copies lawfully made fall under 17 USC 109


Certainly. Those are not, however, the ones which were
copied and distributed by the defendants in this case.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 1:34 PM, Alexander Terekhov wrote:
> > http://www.gnu.org/licenses/gpl.html
> > "by [blah-blah], you indicate your acceptance of this License"
> > http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance
> > "It may be implied from the construction of the contract that the
> > offeror has dispensed with the requirement of communication of
> > acceptance ... acceptance may be inferred from conduct"
> 
> If someone copies and distributes GPL-covered code,
> it may be assumed that he accepts the GPL since he
> has no other permission to do so. 

http://www.terekhov.de/Samsung-Answer.pdf

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

Copies lawfully made fall under 17 USC 109 (fair use copies are also
lawfully made but distribution of such copies is subject to fair use
analysis just like making of such copies), silly Hyman.

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 1:25 PM, Alexander Terekhov wrote:
> > I'm just curious, what "automatically terminate" does
> > http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf
> > then talking about, in your view, oh paragon of GNUtardiness dak?
> 
> What it says:
> 
>  Thus, once each Defendant made a distribution that did
>  not comply with the License, that Defendant lost any and

How could one possibly lose something that "the license just does not
apply" according to dak, idiot Hyman?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 1:14 PM, Alexander Terekhov wrote:
> > 17 U.S.C. § 109(a)
> 
> The works copied and distributed by the defendants are not
> first-sale copies. 

Copies lawfully made fall under 17 USC 109 (fair use copies are also
lawfully made but distribution of such copies is subject to fair use
analysis just like making of such copies), idiot.

> They are being created and distributed

http://www.terekhov.de/Samsung-Answer.pdf

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 1:34 PM, Alexander Terekhov wrote:

http://www.gnu.org/licenses/gpl.html
"by [blah-blah], you indicate your acceptance of this License"
http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance
"It may be implied from the construction of the contract that the
offeror has dispensed with the requirement of communication of
acceptance ... acceptance may be inferred from conduct"


If someone copies and distributes GPL-covered code,
it may be assumed that he accepts the GPL since he
has no other permission to do so. If he wishes to
claim that he did not accept the GPL, that's fine.
He has then infringed on the copyrights of the
covered work.


17 U.S.C. § 109(a)


The defendants are not distributing first-sale copies.
They are copying and distributing GPL-covered works
without complying with the GPL, and are therefore
infringing on the copyright of the covered works.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 1:25 PM, Alexander Terekhov wrote:

I'm just curious, what "automatically terminate" does
http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf
then talking about, in your view, oh paragon of GNUtardiness dak?


What it says:

Thus, once each Defendant made a distribution that did
not comply with the License, that Defendant lost any and
all right to copy, modify, or distribute BusyBox. Any
copying, modification, or distribution of BusyBox after
that time by each Defendant was and is without Plaintiffs'
permission.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 1:14 PM, Alexander Terekhov wrote:

17 U.S.C. § 109(a)


The works copied and distributed by the defendants are not
first-sale copies. They are being created and distributed
in violation of the license agreement.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
[...]
> A promise to licensees availing themselves of the license.  Without any

Uh retard dak.

http://www.gnu.org/licenses/gpl.html

"by [blah-blah], you indicate your acceptance of this License"

http://en.wikipedia.org/wiki/Offer_and_acceptance#Communication_of_acceptance

"It may be implied from the construction of the contract that the
offeror has dispensed with the requirement of communication of
acceptance ... acceptance may be inferred from conduct"

http://www.terekhov.de/Samsung-Answer.pdf

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
[...]
>   if you choose not to comply with
> licensing conditions, the license just does not apply.

I'm just curious, what "automatically terminate" does

http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf

then talking about, in your view, oh paragon of GNUtardiness dak?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 12:32 PM, Alexander Terekhov wrote:
> > The contract laws recognize a concept called "efficient breach" which
> > *encourages* breach of (enforcable) obligations if it's economically
> > efficient to do so.
> 
> However, copyright law provides for injunctions to prevent

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly Hyman?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 12:32 PM, Alexander Terekhov wrote:

The contract laws recognize a concept called "efficient breach" which
*encourages* breach of (enforcable) obligations if it's economically
efficient to do so.


However, copyright law provides for injunctions to prevent
ongoing infringement, so it does not matter if it would be
more beneficial for the infringers to continue infringing.
They will be prevented from doing so.


§ 502. Remedies for infringement: Injunctions
(a) Any court having jurisdiction of a civil action arising
under this title may, subject to the provisions of section
1498 of title 28, grant temporary and final injunctions on
such terms as it may deem reasonable to prevent or restrain
infringement of a copyright.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> Hyman Rosen wrote:
>> 
>> On 4/13/2010 12:02 PM, Alexander Terekhov wrote:
>> > Implicit in a nonexclusive copyright license is the promise not to sue
>> > for copyright infringement.
>> 
>> But it is only an anti-GPL crank who would believe that
>> he could accept the permissions of a license but not its
>> obligations.
>
> The contract laws recognize a concept called "efficient breach" which
> *encourages* breach of (enforcable) obligations if it's economically
> efficient to do so.  Compliance with license/contract obligations is
> almost always voluntary -- if you choose not to comply, then you don't
> have to. You merely have to compensate the non-breaching party for his
> expectancy interest. Hint: damages.

That's the case with a contract.  But if you choose not to comply with
licensing conditions, the license just does not apply.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> Hyman Rosen wrote:
>> 
>> On 4/13/2010 11:30 AM, Alexander Terekhov wrote:
>> > And the contract laws (not the copyright act) provide remedies for
>> > breach of established (enforcable/valid) rules you idiot.
>> 
>> Copyright is its own law, and specifies the nature of
>> infringement and penalties for it, including for
>> injunctions to prevent further infringement. Aside
>> from statutory and actual damages, copyright infringers
>> are not permitted to continue infringing.
>
> Implicit in a nonexclusive copyright license is the promise not to sue
> for copyright infringement.

A promise to licensees availing themselves of the license.  Without any
attempt to honor the license conditions, it's for the court to determine
whether to consider the defendant as an unrelated party.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 12:02 PM, Alexander Terekhov wrote:
> > Implicit in a nonexclusive copyright license is the promise not to sue
> > for copyright infringement.
> 
> But it is only an anti-GPL crank who would believe that
> he could accept the permissions of a license but not its
> obligations.

The contract laws recognize a concept called "efficient breach" which
*encourages* breach of (enforcable) obligations if it's economically
efficient to do so. Compliance with license/contract obligations is 
almost always voluntary -- if you choose not to comply, then you don't 
have to. You merely have to compensate the non-breaching party for his 
expectancy interest. Hint: damages.

See also:

http://www.jus.unitn.it/cardozo/review/Contract/Alpa-1995/alpa2.html

"Posner notes that: "When a breach of contract is established, the issue
becomes one the proper remedy. A starting point for analysis is Holmes's
view that is not the policy of the law to compel adherence to contracts
but only to require each party to choose between performing in
accordance with the contract and compensating the other party for any
injury resulting from a failure to perform. This view contains an
important economic insight." (Economic Analysis of Law, Boston-Toronto,
1977, p. 88).

In accordance with the above reasoning, Cooter and Ulen, in turn, state:
"We define an efficient breach as follows: a breach of contract is more
efficient than performance of the contract when the costs of performance
exceed the benefits to all the parties". "

Got it now, retard?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 12:02 PM, Alexander Terekhov wrote:

Implicit in a nonexclusive copyright license is the promise not to sue
for copyright infringement.


But it is only an anti-GPL crank who would believe that
he could accept the permissions of a license but not its
obligations.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 11:30 AM, Alexander Terekhov wrote:
> > And the contract laws (not the copyright act) provide remedies for
> > breach of established (enforcable/valid) rules you idiot.
> 
> Copyright is its own law, and specifies the nature of
> infringement and penalties for it, including for
> injunctions to prevent further infringement. Aside
> from statutory and actual damages, copyright infringers
> are not permitted to continue infringing.

Implicit in a nonexclusive copyright license is the promise not to sue
for copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th
Cir. 1996), citing De Forest Radio Telephone Co. v. United States, 273
U.S. 236, 242 (1927) (finding that a nonexclusive license is, in
essence, a mere waiver of the right to sue the licensee for
infringement); see also Effects Associates, Inc. v. Cohen, 908 F.2d 555,
558 (9th Cir. 1990) (holding that the granting of a nonexclusive license
may be oral or by conduct and a such a license creates a waiver of the
right to sue in copyright, but not the right to sue for breach of
contract).

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 11:30 AM, Alexander Terekhov wrote:

And the contract laws (not the copyright act) provide remedies for
breach of established (enforcable/valid) rules you idiot.


Copyright is its own law, and specifies the nature of
infringement and penalties for it, including for
injunctions to prevent further infringement. Aside
from statutory and actual damages, copyright infringers
are not permitted to continue infringing.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Hyman Rosen  writes:

> On 4/13/2010 10:43 AM, RJack wrote:
>> Yes, this is true. The GPL clearly spells out illegal requirements
>> for permission to copy and distribute, and therefore there is
>> promissory estoppel available.
>
> The requirements of the GPL are perfectly legal and
> appropriate. Only an anti-GPL crank would believe that
> he could consider a straightforward license obligation
> to be illegal and therefore disregard it.

I don't think he believes the drivel he is spouting.  He just enjoys
annoying people, possibly by confusing others.

It does not seem like he has anything left to do for which people would
remember him favorably.

-- 
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 11:08 AM, Alexander Terekhov wrote:

Hyman Rosen wrote:

If the plaintiff loses for that reason, they will simply
register the work and refile the claim.

After paying defendants attorneys fees and going bankrupt in the
process?


Be sure to get back to me when that happens.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 11:02 AM, Alexander Terekhov wrote:

With a license, however, the terms and covenants of the license

> establish the applicable rules.

Precisely.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 10:49 AM, Alexander Terekhov wrote:
> > In essense, a plaintiff without a registration will still lose,
>  > just for different reasons.
> 
> If the plaintiff loses for that reason, they will simply
> register the work and refile the claim.

After paying defendants attorneys fees and going bankrupt in the
process? 

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 10:31 AM, Alexander Terekhov wrote:
> > The contract laws recognize a concept called "efficient breach" which
> > *encourages* breach of (enforcable) obligations if it's economically
> > efficient to do so.
> 
> That's fine. The copyright infringers will then be enjoined

- 
While a party that owns copyright rights is ordinarily entitled to 
pursue infringement claims against any third party who violates them, 
the courts have recognized that the rights and remedies available to 
copyright holders change significantly when the owner elects to give 
others a nonexclusive license to use such property. In that situation, 
the owner/user relationship is fundamentally different. Absent a 
license, the rights of the copyright holder are governed by statutory 
and common law rules applicable to such rights. With a license, 
however, the terms and covenants of the license establish the 
applicable rules. See Effects Associates, Inc. v. Cohen, 908 F.2d 555, 
559 (9th Cir. 1990) (in granting a copyright license, the licensor 
gives up its right to sue the licensee for infringement). 

Recognizing that the existence of consensual licensing arrangements 
significantly changes the applicable rules and the expectations of the 
parties, federal courts have held that a party cannot normally pursue 
a copyright infringement action based upon the licensees breach of 
covenants in the license agreement. As a general rule, " if the 
[licensees] improper conduct constitutes a breach of a covenant 
undertaken by the licensee . . . and if such covenant constitutes an 
enforceable contractual obligation, then the licensor will have the 
cause of action for contract," not for copyright infringement. Graham 
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. 
Caldewey, 698 F.2d 991, 993 (9th Cir. 1983): 

[A] case does not arise under the federal copyright laws . . . 
merely because the subject matter of the action involves or affects a 
copyright. 
- 

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:49 AM, Alexander Terekhov wrote:

In essense, a plaintiff without a registration will still lose,

> just for different reasons.

If the plaintiff loses for that reason, they will simply
register the work and refile the claim.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:43 AM, RJack wrote:

Yes, this is true. The GPL clearly spells out illegal requirements
for permission to copy and distribute, and therefore there is
promissory estoppel available.


The requirements of the GPL are perfectly legal and
appropriate. Only an anti-GPL crank would believe that
he could consider a straightforward license obligation
to be illegal and therefore disregard it.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:40 AM, RJack wrote:

The SFLC lawsuit claims that BusyBox 0.60.3 is the infringed work, as
can easily be seen by reading the complaint,
.

The plaintiffs are required to make available with specificity (i.e.
non-moving target) the registered version (v. 0.60.3) of the BusyBox
source code used to create the binary which they allege is copied and
distributed, not the source code to some other BusyBox version.


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed
work, as can easily be seen by reading the complaint,
.
The infringed work is "BusyBox". The defendants are required to make
available the version of the BusyBox source code used to create the
binary which they are copying and distributing.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

RJack wrote:
> 
> Hyman Rosen wrote:
> 
> >
> > It is possible that the court will decide it does not have
> > subject-matter jurisdiction over the versions which the defendants
> > are copying and distributing because those versions are not
> > registered.
> 
> That is no longer good law. It is now a claim processing requirement.
> http://www.pattishall.com/pdf/3-9-10%20Reed%20v%20Elsevier%20v%20Munchink%20Blog%20Post.pdf

In essense, a plaintiff without a registration will still lose, just for
different reasons.

http://blog.internetcases.com/2010/03/03/supreme-court-clarifies-basis-for-why-copyright-suits-over-unregistered-works-should-be-dismissed/

"Supreme Court clarifies basis for why copyright suits over unregistered
works should be dismissed

March 3rd, 2010

By Evan Brown 

Image via WikipediaSupreme Court overturns Second Circuit, holding that
a copyright plaintiff’s failure to register the work before filing suit
does not deprive the court of subject matter jurisdiction. 

Reed Elsevier v. Muchnick, Slip. Op., 559 U.S. ___ (March 2, 2010) [View
opinion here]

“Subject matter jurisdiction” refers to a court’s power to hear the
matter before it. The Constitution sets out the general contours for the
federal courts’ jurisdiction, and Congress enacts statutes that give
more detail to this set of powers. Particular statutes can define
whether the federal courts have subject matter jurisdiction over certain
types of cases. For example, Congress has declared that the federal
courts have exclusive jurisdiction over copyright cases (See 28 U.S.C.
1338). 

If a court does not have subject matter jurisdiction over the type of
matter before it, it has no power to adjudicate the case. So the
question of whether subject matter jurisdiction exists is critical. 

The Supreme Court just decided a case that deals with the scope of
subject matter jurisdiction in copyright cases, and clarifies a notion
that has been the subject of some uncertainty. The question the court
decided was whether a federal court has subject matter jurisdiction over
a copyright case when a work at issue is not the subject of a copyright
registration. 

Section 411(a) of the Copyright Act (at 17 U.S.C. 411(a)) provides,
among other things, that “no civil action for infringement of the
copyright in any United States work shall be instituted until . . .
registration of the copyright claim has been made in accordance with
this title.”

Some courts have held, and many litigants have argued, that this
provision of Section 411 is a “jurisdictional prerequisite.” Said
another way, some have argued that if the copyright plaintiff files suit
without having secured a registration, the court is without subject
matter jurisdiction over the case. In the case of Reed Elsevier, Inc. v.
Muchnick, however, the Supreme Court held that Section 411 does not
deprive the court of subject matter jurisdiction, but instead merely
provides a “claim-processing rule,” akin to an element of the case. 

The lower court proceedings

[...]

The court’s holding

It is worth noting that this case does not address the bothersome
question of whether Section 411 requires that a copyright plaintiff
actually have a registration certificate in hand before filing the
complaint, or whether he or she simply needs to have the application on
file. The case also does not stand for the proposition that one can
pursue copyright infringement litigation without having registered his
or her copyright. A plaintiff without a registration will still lose,
just for different reasons. 

[...]

What does it mean?

The case actually addresses a rather nuanced point of copyright law. And
the effect of the holding will not change the end results of cases
brought in the future with the same facts — after all, a non-registering
plaintiff will still lose either way, now just for a different reason.
Motions to dismiss copyright complaints alleging infringement of
unregistered works will clearly fall under Fed. R. Civ. P. 12(b)(6)
(failure to state a claim) and not 12(b)(1) (lack of jurisdiction). "

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:31 AM, Alexander Terekhov wrote:

The contract laws recognize a concept called "efficient breach" which
*encourages* breach of (enforcable) obligations if it's economically
efficient to do so.


That's fine. The copyright infringers will then be enjoined
from committing further infringement, and if they continue
to do so willfully, will be subject to civil and criminal
penalties.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[chrisv]

Hyman Rosen wrote:

>On 4/13/2010 9:37 AM, RJack wrote:
>
>> The plaintiffs are required to make available with specificity (i.e.
>> non-moving target) the registered version (v. 0.60.3) of the BusyBox
>> source code used to create the binary which they allege is copied and
>> distributed, not the source code to some other BusyBox version.

What kind of a stupid POS would one have to be, to claim, as "RJack"
does above, that one can take, for free, a bunch of copyrighted
software, use it as the basis of your product, then being required
only to make redunantly available the original bunch of of software
that you took (which, obviously, was *already* available from wherever
it was taken).

An *incredibly* stupid POS, IMO...

>No, that is false. The defendants are required to make available the
>source to the version of BusyBox which they copy and distribute.

I wonder what the anti-GPL cranks are being paid to make public
jackasses of themselves on these issues.

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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 10:10 AM, RJack wrote:

The GPL allows copying and distribution through promissory
estoppel.


No, this is false. The GPL clearly spells out the requirements for
permission to copy and distribute, and therefore there is no
promissory estoppel - anyone availing themselves of the license is
explicitly informed of their obligations.

It is only anti-GPL cranks (or lawyers raising every possible 
defense) who believe that they may avail themselves of the 
permissions of a license while rejecting its obligations.


Yes, this is true. The GPL clearly spells out illegal requirements
for permission to copy and distribute, and therefore there is
promissory estoppel available.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 10:09 AM, RJack wrote:

Samsung isn't infringing copyrights.


It is, by copying and distributing GPL-covered software without
complying with the GPL.

So... I'll just ask the question once again. Where is the link to 
"BusyBox 0.60.3" which was registered and then claimed as the

infringed work in the SFLC's Comtrend Corp. lawsuit?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed 
work, as can easily be seen by reading the complaint, 
.



The infringed work is "BusyBox". The defendants are required to make 
available the version of the BusyBox source code used to create the 
binary which they are copying and distributing.



The SFLC lawsuit claims that BusyBox 0.60.3 is the infringed work, as
can easily be seen by reading the complaint,
.

The plaintiffs are required to make available with specificity (i.e.
non-moving target) the registered version (v. 0.60.3) of the BusyBox
source code used to create the binary which they allege is copied and
distributed, not the source code to some other BusyBox version.

Sincerely,
RJasck :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 10:07 AM, Alexander Terekhov wrote:
> > Notice "was licensed" in
> 
> It is only anti-GPL cranks (and lawyers who need to raise
> every possible defense) who believe that one may accept the
> permissions of a license while refusing its obligations.

Hot, hot, hot, Hyman!

Promises are made to be broken, therefore the contract laws provide the
remedies.

The contract laws recognize a concept called "efficient breach" which
*encourages* breach of (enforcable) obligations if it's economically
efficient to do so. Compliance with contract obligations is almost
always voluntary -- if you choose not to comply, then you don't have to.
You merely have to compensate the non-breaching party for his expectancy
interest. Hint: damages.

See also:

http://www.jus.unitn.it/cardozo/review/Contract/Alpa-1995/alpa2.html

Got it now, silly?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:10 AM, RJack wrote:

The GPL allows copying and distribution through promissory estoppel.


No, this is false. The GPL clearly spells out the requirements
for permission to copy and distribute, and therefore there is
no promissory estoppel - anyone availing themselves of the
license is explicitly informed of their obligations.

It is only anti-GPL cranks (or lawyers raising every possible
defense) who believe that they may avail themselves of the
permissions of a license while rejecting its obligations.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:09 AM, RJack wrote:

Samsung isn't infringing copyrights.


It is, by copying and distributing GPL-covered software
without complying with the GPL.


So... I'll just ask the question once again. Where is the link to
"BusyBox 0.60.3" which was registered and then claimed as the infringed
work in the SFLC's Comtrend Corp. lawsuit?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed
work, as can easily be seen by reading the complaint,
.
The infringed work is "BusyBox". The defendants are required to make
available the version of the BusyBox source code used to create the
binary which they are copying and distributing.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

RJack  writes:

> Hyman Rosen wrote:
>> On 4/13/2010 7:34 AM, RJack wrote:
>>> So... I'll just ask the question once again. Where is the link to
>>> "BusyBox 0.60.3" which was registered and then claimed as the
>>> infringed work in the SFLC's Comtrend Corp. lawsuit?
>>
>> The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed
>> work, as can easily be seen by reading the complaint,
>> .
>>
>>
>> The infringed work is "BusyBox".
>
> Yup. And because you say it is,

Because the complained says it is.

> black is white and up is down. (In the land of GNU)

It is not clear what kind of land you need in order to stop imagining
moving goal posts.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:06 AM, RJack wrote:

Hyman Rosen wrote:

The infringed work is "BusyBox".

Yup. And because you say it is, black is white and up is down. (In the
land of GNU)


That is the claim stated in the lawsuit. Whether
the claim is valid is a separate matter from whether
it is the claim.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:



It is possible that the court will decide it does not have 
subject-matter jurisdiction over the versions which the defendants

are copying and distributing because those versions are not
registered.


That is no longer good law. It is now a claim processing requirement.
http://www.pattishall.com/pdf/3-9-10%20Reed%20v%20Elsevier%20v%20Munchink%20Blog%20Post.pdf


Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

RJack  writes:

> Hyman Rosen wrote:
>> On 4/13/2010 9:34 AM, Alexander Terekhov wrote:
>>> Hyman Rosen wrote:
 It's easy to read the first-sale doctrine, but fortunately it
 does not apply to the copying and distribution carried out by the
 defendants in this case.
>>>
>>> Sez who?
>>
>> The GPL, of course, which does not allow copying and distribution of
>> covered works without compliance.
>
> The GPL allows copying and distribution through promissory estoppel.

It would be quite hard to figure out a deceptively suggested promise
that a defendant could claim to have relied on.

The GPL is very clear in its conditions, permissions and implications.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 10:07 AM, Alexander Terekhov wrote:

Notice "was licensed" in


It is only anti-GPL cranks (and lawyers who need to raise
every possible defense) who believe that one may accept the
permissions of a license while refusing its obligations.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 9:34 AM, Alexander Terekhov wrote:

Hyman Rosen wrote:

It's easy to read the first-sale doctrine, but fortunately it
does not apply to the copying and distribution carried out by the
defendants in this case.


Sez who?


The GPL, of course, which does not allow copying and distribution of
covered works without compliance.


The GPL allows copying and distribution through promissory estoppel.

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 7:45 AM, Alexander Terekhov wrote:

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.


It is unwise for people who are infringing copyright to contact
the rights holders and inform them of the infringement.


Samsung isn't infringing copyrights. The SFLC is amassing a large debt 
consisting of Samsung's attorney fees.


So... I'll just ask the question once again. Where is the link to
"BusyBox 0.60.3" which was registered and then claimed as the infringed
work in the SFLC's Comtrend Corp. lawsuit?

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 9:34 AM, Alexander Terekhov wrote:
> > Hyman Rosen wrote:
> >> It's easy to read the first-sale doctrine, but fortunately
> >> it does not apply to the copying and distribution carried
> >> out by the defendants in this case.
> >
> > Sez who?
> 
> The GPL, of course, which does not allow copying and
> distribution of covered works without compliance.

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  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/13/2010 7:34 AM, RJack wrote:
So... I'll just ask the question once again. Where is the link to 
"BusyBox 0.60.3" which was registered and then claimed as the

infringed work in the SFLC's Comtrend Corp. lawsuit?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed 
work, as can easily be seen by reading the complaint, 
.



The infringed work is "BusyBox".


Yup. And because you say it is, black is white and up is down. (In the
land of GNU)

Sincerely,
RJack :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 9:30 AM, Alexander Terekhov wrote:
> > Absent a license
> 
> Notice a problem here?

Notice "was licensed" in

"Defendant alleges that Plaintiffs’ claim for copyright infringement 
is barred under at least the provisions of 17 U.S.C. § 109(a), as 
Defendant was licensed and any copies alleged to be infringing were, 
therefore, lawfully made. "

you retard?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 9:37 AM, RJack wrote:

The SFLC lawsuit claims that BusyBox 0.60.3 is the infringed work, as
can easily be seen by reading the complaint,
.


It is silly for you to continually lie about what an
easily read document states. The complaint alleges that
the defendants infringe on "BusyBox", not on a specific
version. The only mention of a specific version is

31. Mr. Andersen is, and at all relevant times has been,
a copyright owner under United States copyright law in
the FOSS software program known as BusyBox. See, e.g.,
“BusyBox, v.0.60.3.”, Copyright Reg. No. TX0006869051
(10/2/2008). Plaintiff Software Freedom Conservancy is
the corporate home for the BusyBox project and the
designated copyright enforcement agent for Mr. Andersen
with respect to BusyBox.

It is possible that the court will decide it does not have
subject-matter jurisdiction over the versions which the
defendants are copying and distributing because those
versions are not registered. In that case, the plaintiffs
will register those versions and refile their claim. I
don't know whether all circuits have the requirement that
each separate version must be registered, as was the case
in the SimplexGrinell decision.



The plaintiffs are required to make available with specificity (i.e.
non-moving target) the registered version (v. 0.60.3) of the BusyBox
source code used to create the binary which they allege is copied and
distributed, not the source code to some other BusyBox version.


No, that is false. The defendants are required to make available the
source to the version of BusyBox which they copy and distribute.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 9:34 AM, Alexander Terekhov wrote:

Hyman Rosen wrote:

It's easy to read the first-sale doctrine, but fortunately
it does not apply to the copying and distribution carried
out by the defendants in this case.


Sez who?


The GPL, of course, which does not allow copying and
distribution of covered works without compliance.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 9:30 AM, Alexander Terekhov wrote:

Absent a license


Notice a problem here?
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 7:45 AM, Alexander Terekhov wrote:

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.


It is unwise for people who are infringing copyright to contact
the rights holders and inform them of the infringement.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 7:34 AM, RJack wrote:

So... I'll just ask the question once again. Where is the link to
"BusyBox 0.60.3" which was registered and then claimed as the infringed
work in the SFLC's Comtrend Corp. lawsuit?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed
work, as can easily be seen by reading the complaint,
.
The infringed work is "BusyBox".
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

Hyman Rosen wrote:

On 4/12/2010 7:55 PM, RJack wrote:

Title 17 USC § 301


Preemption of state laws equivalent to copyright is irrelevant to the
 GPL, which is a copyright license authorizing others to practice 
some of the exclusive rights of the copyright holders, as per federal

 copyright law.
So... I'll ask the question once more. Where is the link to 
"BusyBox 0.60.3" which was registered and claimed in the SFLC 
lawsuit as the infringed work?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed 
work, as can easily be seen by reading the complaint, 
.
 The defendants are required to make available the version of the 
BusyBox source code used to create the binary which they are copying

 and distributing, not the source to BusyBox 0.60.3.


The SFLC lawsuit claims that BusyBox 0.60.3 is the infringed work, as
can easily be seen by reading the complaint,
.

The plaintiffs are required to make available with specificity (i.e.
non-moving target) the registered version (v. 0.60.3) of the BusyBox
source code used to create the binary which they allege is copied and
distributed, not the source code to some other BusyBox version.

Sincerely,
RJasck :)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 4:53 AM, Alexander Terekhov wrote:
> > You can't read 17 U.S.C. 109(a) yourself
> 
> It's easy to read the first-sale doctrine, but fortunately
> it does not apply to the copying and distribution carried
> out by the defendants in this case.

Sez who?

Samsung says that

"As a separate and distinct Twelfth Affirmative Defense and each
claim for relief alleged therein, Defendant alleges that Plaintiffs’
claim for copyright infringement is barred under at least the 
provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any 
copies alleged to be infringing were, therefore, lawfully made. "

To understand it better, think of the following saga:

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly Hyman?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> On 4/13/2010 2:41 AM, Alexander Terekhov wrote:
> > SFLC's claim of copyright infringement is baseless and frivolous
> 
> It is neither. Erik Anderson is a copyright holder on BusyBox,
> and the defendants are infringing on his copyright by copying
> and distributing BusyBox in violation of the terms of its
> license.

- 
While a party that owns copyright rights is ordinarily entitled to 
pursue infringement claims against any third party who violates them, 
the courts have recognized that the rights and remedies available to 
copyright holders change significantly when the owner elects to give 
others a nonexclusive license to use such property. In that situation, 
the owner/user relationship is fundamentally different. Absent a 
license, the rights of the copyright holder are governed by statutory 
and common law rules applicable to such rights. With a license, 
however, the terms and covenants of the license establish the 
applicable rules. See Effects Associates, Inc. v. Cohen, 908 F.2d 555, 
559 (9th Cir. 1990) (in granting a copyright license, the licensor 
gives up its right to sue the licensee for infringement). 

Recognizing that the existence of consensual licensing arrangements 
significantly changes the applicable rules and the expectations of the 
parties, federal courts have held that a party cannot normally pursue 
a copyright infringement action based upon the licensees breach of 
covenants in the license agreement. As a general rule, " if the 
[licensees] improper conduct constitutes a breach of a covenant 
undertaken by the licensee . . . and if such covenant constitutes an 
enforceable contractual obligation, then the licensor will have the 
cause of action for contract," not for copyright infringement. Graham 
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. 
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. 
Caldewey, 698 F.2d 991, 993 (9th Cir. 1983): 

[A] case does not arise under the federal copyright laws . . . 
merely because the subject matter of the action involves or affects a 
copyright. 
- 

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:53 AM, Alexander Terekhov wrote:

You can't read 17 U.S.C. 109(a) yourself


It's easy to read the first-sale doctrine, but fortunately
it does not apply to the copying and distribution carried
out by the defendants in this case.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 4:51 AM, Alexander Terekhov wrote:

David Kastrup wrote:

The GPL legally establishes a heterogenuos pool of software.


Hey dak, how come that the FSF claimed in court that the GPL is NOT A
POOLING LICENSE (and is merely "a vertical agreement between the
licensee and the licensor of the underlying software" instead)?


Because the pool of software created is an effect of
widespread use of the GPL. The GPL itself, however,
is not a pooling license. There is a difference between
the stated properties of the license and the emergent
properties of the system which it engenders.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/13/2010 2:41 AM, Alexander Terekhov wrote:

SFLC's claim of copyright infringement is baseless and frivolous


It is neither. Erik Anderson is a copyright holder on BusyBox,
and the defendants are infringing on his copyright by copying
and distributing BusyBox in violation of the terms of its
license.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov  writes:
> 
> > David Kastrup wrote:
> > [...]
> >
> >> You really have to beat your habit of quoting attempted defenses as if
> >> they were of any legal importance.
> >
> > Samsung (calling SFLC):
> 
> Wow, now you are quoting imagined sneers.  Talk about an improvement.

How did you manage to find quotation marks in 

-
Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 
-

other than "permission to pass copies" (quoting you) you idiot?

> 
> > Got it now, silly Hyman?
> 
> Looks like your attention span zeroed out again.

For me you both are equaly silly twin GNUtard brothers. 

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
http://gng.z505.com/index.htm 
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hyman Rosen]

On 4/12/2010 7:55 PM, RJack wrote:

Title 17 USC § 301


Preemption of state laws equivalent to copyright is irrelevant
to the GPL, which is a copyright license authorizing others to
practice some of the exclusive rights of the copyright holders,
as per federal copyright law.


So... I'll ask the question once more. Where is the link to "BusyBox
0.60.3" which was registered and claimed in the SFLC lawsuit as the
infringed work?


The SFLC lawsuit does not claim that BusyBox 0.60.3 is the infringed
work, as can easily be seen by reading the complaint,
.
The defendants are required to make available the version of the
BusyBox source code used to create the binary which they are
copying and distributing, not the source to BusyBox 0.60.3.
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
> [...]
>
>> You really have to beat your habit of quoting attempted defenses as if
>> they were of any legal importance.
>
> Samsung (calling SFLC):

Wow, now you are quoting imagined sneers.  Talk about an improvement.

> Got it now, silly Hyman?

Looks like your attention span zeroed out again.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

RJack  writes:

> David Kastrup wrote:
>
 The GPL legally establishes a heterogenuos pool of software.
>
> The GPL legally establishes a heterogeneous pool of whacked out,
> delusional nut-jobs.

You are not that heterogeneous.

-- 
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[David Kastrup]

Alexander Terekhov  writes:

> David Kastrup wrote:
> [...]
>> That sort of handwaving waffle got Wallace thrown out of court for
>> failure to state a claim.
>
> Wallace's case was dismissed because Chief Judge Eaterbrook is of
> opinion that 
>
> *** FOSS is junk ***
>
> "People willingly pay for quality software even when they can get 
> free (but imperfect) substitutes. Open Office is a free, open-source 
> suite of word processor, spreadsheet and  presentation software, but 
> the proprietary Microsoft Office has many more users. Gimp is a free, 
> open-source image editor, but the proprietary Adobe Photoshop enjoys 
> the lion's share of the market."

With that kind of argument, water is junk because people willingly pay
for wine.

> and 
>
> *** FOSS is doomed ***
>
> "The number of proprietary operating systems is growing, not shrinking, 
> so competition in this market continues quite apart from the fact that 
> the GPL ensures the future availability of Linux and other Unix 
> offshoots."

Actually, the number of free operating systems is _exploding_.  Which
some people try to take as a sign that *** FOSS is doomed *** as well.
The truth is that the number of any kind of system is growing because we
have a growing market.

But of course, our cute little troll Terekhov tries to figure out some
consolation prize from a verdict which he, at the same time, decries as
having to be the result of drunkenness.

-- 
David Kastrup
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

Hadron wrote:
> 
> Alexander Terekhov  writes:
> 
> >
> > Samsung (calling SFLC):
> >
> > Hello SFLC, this is Samsung calling. Please be advised that we've made 1
> > (ONE) BILLION copies of GPL'd material copied verbatim and/or with
> > modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
> > think that our copies are infringing.
> >
> > (After three days...)
> >
> > Samsung (calling SFLC again):
> >
> > Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
> > pass copies" in Stallman's big ass as we are going to pass our copies
> > under 17 USC 109, thank you.
> >
> > Got it now, silly Hyman?

I meant equally stupid dak.

> >
> > regards,
> > alexander.
> >
> > P.S. "Every computer program in the world, BusyBox included, exceeds the
> > originality standards required by copyright law."
> >
> > Hyman Rosen  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  The Silliest GPL 'Advocate'
> 
> Z .. this must be the most round and round in circles, boring thread
> in the history of usenet.

Wait till silly Hyman joins this branch. ;-)

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Hadron]

Alexander Terekhov  writes:

>
> Samsung (calling SFLC):
>
> Hello SFLC, this is Samsung calling. Please be advised that we've made 1
> (ONE) BILLION copies of GPL'd material copied verbatim and/or with
> modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
> think that our copies are infringing.
>
> (After three days...)
>
> Samsung (calling SFLC again):
>
> Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
> pass copies" in Stallman's big ass as we are going to pass our copies
> under 17 USC 109, thank you. 
>
> Got it now, silly Hyman?
>
> regards,
> alexander.
>
> P.S. "Every computer program in the world, BusyBox included, exceeds the
> originality standards required by copyright law."
>
> Hyman Rosen  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  The Silliest GPL 'Advocate'


Z .. this must be the most round and round in circles, boring thread
in the history of usenet.

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Re: SFLC stipulated dismissal of Comtrend without any settlement

[Alexander Terekhov]

David Kastrup wrote:
[...]
> >> No, you are confused again.  The GPL gives you permission to pass copies
> >
> > Read 17 USC 109, idiot.
> >
> > Western Digital:
> >
> > "Plaintiffs claims are barred by the first sale doctrine."
> >
> > Westinghouse:
> >
> > "Plaintiffs’ claims for relief are barred by the First Sale
> > doctrine."
> >
> > Samsung:
> >
> > "As a separate and distinct Twelfth Affirmative Defense and each
> > claim for relief alleged therein, Defendant alleges that Plaintiffs’
> > claim for copyright infringement is barred under at least the
> > provisions of 17 U.S.C. § 109(a), as Defendant was licensed and any
> > copies alleged to be infringing were, therefore, lawfully made. "
> 
> You really have to beat your habit of quoting attempted defenses as if
> they were of any legal importance.

Samsung (calling SFLC):

Hello SFLC, this is Samsung calling. Please be advised that we've made 1
(ONE) BILLION copies of GPL'd material copied verbatim and/or with
modifications. Please contact us within 3 (THREE) BUSINESS DAYS if you
think that our copies are infringing.

(After three days...)

Samsung (calling SFLC again):

Hello SFLC, this is Samsung calling. Please stick the GPL "permission to
pass copies" in Stallman's big ass as we are going to pass our copies
under 17 USC 109, thank you. 

Got it now, silly Hyman?

regards,
alexander.

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

Hyman Rosen  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  The Silliest GPL 'Advocate'

--
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Re: SFLC stipulated dismissal of Comtrend without any settlement

[RJack]

David Kastrup wrote:


The GPL legally establishes a heterogenuos pool of software.


The GPL legally establishes a heterogeneous pool of whacked out,
delusional nut-jobs. It's the glue that binds zealots into a tightly
packed socialist amalgam. Crazies of every order are bound in an
unenforceable social contract.

So... I'll just ask the question once again. Where is the link to
"BusyBox 0.60.3" which was registered and then claimed as the infringed
work in the SFLC's Comtrend Corp. lawsuit?

Could it be that it's a "moving link" similar to a ":moving target"?
Let's just moove the goalposts. That way victory is
always guaranteed.

Sincerely,
RJack :)



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