Ruling Is a Victory for Supporters of Free Software - Linux

This is a discussion on Ruling Is a Victory for Supporters of Free Software - Linux ; ...In a ruling Wednesday, the federal appeals court in Washington said that just because a software programmer gave his work away did not mean it could not be protected. The decision legitimizes the use of commercial contracts for the distribution ...

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  1. Ruling Is a Victory for Supporters of Free Software


    ...In a ruling Wednesday, the federal appeals court in Washington said
    that just because a software programmer gave his work away did not
    mean it could not be protected.

    The decision legitimizes the use of commercial contracts for the
    distribution of computer software and digital artistic works for the
    public good. The court ruling also bolsters the open-source movement
    by easing the concerns of large organizations about relying on free
    software from hobbyists and hackers who have freely contributed time
    and energy without pay....

    The ambiguity facing open-source licensing has been one of the hurdles
    facing the movement, said Joichi Ito, the chief executive of Creative
    Commons. [Doubt has been used against free software in the past...]

    [The case of] Mr. Katzer [who] has sued free software developers for
    patent infringement ... the free software community has argued that he
    had failed to disclose earlier technology, known as prior art, in his
    patent filings.

    [Jacobsen, a physics prof at UC Berkeley, sued Katzer for misuse of
    open source software...]

    “We don’t charge for this and so all we really get is
    credit,” [Jacobsen] said, adding that anyone is free to use and modify
    the programming instructions created by his group as long as they
    retain the credit and distribute them with the programmer’s
    instructions.


    http://www.nytimes.com/2008/08/14/te...14commons.html

  2. Re: Ruling Is a Victory for Supporters of Free Software

    On Thu, 14 Aug 2008 00:34:26 -0700 (PDT), nessuno@wigner.berkeley.edu
    wrote:

    >
    > ...In a ruling Wednesday, the federal appeals court in Washington said
    > that just because a software programmer gave his work away did not
    > mean it could not be protected.


    I dunno, maybe I am naive in this but it seems to me that if a person wants
    to give away something they wrote but with conditions, I don't see the
    problem?

    IOW I write a tune and put it up on the Internet for anyone to download and
    play.
    I even include the chart so they can play it correctly.
    However, in the agreement I state that they can't use my tune as bumper
    music or any other kind of commercial backing track.
    What's the problem?
    Seems logical to me because I get to have exposure for my work but at the
    same time prohibit leeches from profiting from my works.


    --
    Moshe Goldfarb
    Collector of soaps from around the globe.
    Please visit The Hall of Linux Idiots:
    http://linuxidiots.blogspot.com/

  3. Re: Ruling Is a Victory for Supporters of Free Software

    On Thu, 14 Aug 2008 15:04:14 -0400, Moshe Goldfarb. wrote:


    > I dunno, maybe I am naive in this but it seems to me that if a person
    > wants to give away something they wrote but with conditions, I don't see
    > the problem?


    I like the idea of absurd conditions, like you have to be wearing a
    gorilla suit before listening to the song



    -Thufir

  4. Re: Ruling Is a Victory for Supporters of Free Software

    On Thu, 14 Aug 2008 21:31:07 GMT, thufir wrote:

    > On Thu, 14 Aug 2008 15:04:14 -0400, Moshe Goldfarb. wrote:
    >
    >
    >> I dunno, maybe I am naive in this but it seems to me that if a person
    >> wants to give away something they wrote but with conditions, I don't see
    >> the problem?

    >
    > I like the idea of absurd conditions, like you have to be wearing a
    > gorilla suit before listening to the song
    >
    >
    >
    > -Thufir


    Hahaha!

    Jumping up and down screaming "Prove it!!! Prove I didn't wear the suit!!!!
    "
    Haha...

    Sounds kind of like "The Rocky Horror Show" you have to be in costume to
    *really* appreciate the show.

    --
    Moshe Goldfarb
    Collector of soaps from around the globe.
    Please visit The Hall of Linux Idiots:
    http://linuxidiots.blogspot.com/

  5. Re: Ruling Is a Victory for Supporters of Free Software

    In article <1nbqtqve18fap$.3nhk9ls82a5s.dlg@40tude.net>,
    "Moshe Goldfarb." wrote:
    > I dunno, maybe I am naive in this but it seems to me that if a person
    > wants to give away something they wrote but with conditions, I don't
    > see the problem?
    >
    > IOW I write a tune and put it up on the Internet for anyone to
    > download and play. I even include the chart so they can play it
    > correctly. However, in the agreement I state that they can't use my
    > tune as bumper music or any other kind of commercial backing track.
    > What's the problem? Seems logical to me because I get to have
    > exposure for my work but at the same time prohibit leeches from
    > profiting from my works.


    The issue in this appeal was basically the nature of the conditions in
    the license. For example, say you write a tune. You make an agreement
    with me, that says I can make CDs of your tune, and sell them in music
    stores. The agreement says that I will deliver to you quarterly, no
    later than the 15th day after the last day of the quarter, an audited
    accounting of sales of the CD, revenue received from that, costs I'm
    allowed to deduct from that per our agreement, and a net profit or loss,
    and that if there is a net profit, I will deliver to you, with the audit
    report, a check for a certain percentage of that.

    All goes well for a year or so, but then I miss a deadline. I've got a
    new artist I'm promoting, and your old tune isn't selling well anymore,
    so I don't care about it or you. You, naturally, still want your audit
    and royalties, and since I won't listen to reason, you decide to sue me.

    Do you sue me for breach of contract, or do you sue me for copyright
    violation?

    Before we consider that, let me throw one more thing in. In addition to
    the CDs, I also start selling a book that contains the sheet music to
    your tune, and the lyrics. There's nothing in our agreement that says I
    can do that. You want to sue me over that, too.

    Is that a copyright suit, or a breach of contract suit?

    The answer is that the first, over the missing audit and royalty
    payment, would be be a contract suit. The second, over the sheet music
    and lyrics, would be a suit for copyright infringement.

    The way the courts would see it is that in the first one (over the
    royalties), I had a license from you allowing me to copy and distribute
    the CDs, and that's what I'm doing. So, no copyright issue. When you
    gave me that license, you got a promise from me to give you the audits
    and royalties. That promise was backed by consideration, and is legally
    enforceable. In other words--a contract.

    My license from you did not cover sheet music and lyrics. So, my
    copying and distributing there is outside the scope of the license, and
    since I have no other separate license for that, we've got a copyright
    case.

    And that's what this appeal was about. Plaintiff wanted an injunction
    to stop defendant from using P's work. Such an injunction is a lot
    easier to get in a copyright case than in a contract case. Defendant
    said that his violation (if any) was not of copyright, but rather of
    contract. That is, his argument is that everything he was doing (making
    and distributing copies and derivative works) is within the scope of the
    license. The requirements of the license (attribution, source code, and
    so forth), D claims, are promises of the licensee, much like my promise
    of royalties in the CD hypothetical. So, even if D is found to have
    violated those terms of the license, it is a contract violation, not a
    copyright issue.

    The district court agreed. The appellate court decided that this was
    incorrect. Those conditions weren't promises made by the licensee, they
    were conditions under which the licensor is willing to grant a license.
    If you don't obey them, you don't have a license, and so the copying and
    distribution is not a contract problem--it is a copyright problem.

    As the court put it:

    The heart of the argument on appeal concerns whether the terms of
    the Artistic License are conditions of, or merely covenants to, the
    copyright license. Generally, "A copyright owner who grants a
    nonexclusive license to use his copyrighted material waives his
    right to sue the licensee for copyright infringement" and can sue
    only for breach of contract. Sun Microsystems, Inc., v. Microsoft
    Corp., 188 F.3d 1115, 1121 (9th Cir. 1999); Graham v. James, 144
    F.3d 229, 236 (2d Cir. 1998). If, however, a license is limited in
    scope and the licensee acts outside the scope, the licensor can
    bring an action for copyright infringement. See S.O.S., Inc. v.
    Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Nimmer on
    Copyright, sec. 1015[A] (1999).

    Thus, if the terms of the Artistic License allegedly violated are
    both covenants and conditions, they may serve to limit the scope of
    the license and are governed by copyright law. If they are merely
    covenants, by contrast, they are governed by contract law. See
    Graham, 144 F.3d at 236-37 (whether breach of license is actionable
    as copyright infringement or breach of contract turns on whether
    provision breached is condition of the license, or mere covenant);
    Sun Microsystems, 188 F.3d at 1121 (following Graham; independent
    covenant does not limit scope of copyright license). The District
    Court did not expressly state whether the limitations in the
    Artistic License are independent covenants or, rather, conditions
    to the scope; its analysis, however, clearly treated the license
    limitations as contractual covenants rather than conditions of the
    copyright license.

    --
    --Tim Smith

  6. Re: Ruling Is a Victory for Supporters of Free Software


    Tim Smith wrote:
    [...]
    > And that's what this appeal was about. Plaintiff wanted an injunction
    > to stop defendant from using P's work. Such an injunction is a lot
    > easier to get in a copyright case than in a contract case. Defendant
    > said that his violation (if any) was not of copyright, but rather of
    > contract. That is, his argument is that everything he was doing (making
    > and distributing copies and derivative works) is within the scope of the
    > license. The requirements of the license (attribution, source code, and
    > so forth), D claims, are promises of the licensee, much like my promise
    > of royalties in the CD hypothetical. So, even if D is found to have
    > violated those terms of the license, it is a contract violation, not a
    > copyright issue.
    >
    > The district court agreed. The appellate court decided that this was
    > incorrect. Those conditions weren't promises made by the licensee, they
    > were conditions under which the licensor is willing to grant a license.
    > If you don't obey them, you don't have a license, and so the copying and
    > distribution is not a contract problem--it is a copyright problem.
    >
    > As the court put it:


    The Federal Circuit cited to the Graham v. James decision and then
    refused to accept the Second Circuit as authority for it's decision that
    the covenants in the JMRI case were actually conditions (precedent)
    somehow limiting the scope (CAFC seems to utterly confuse conditions
    precedent ["A condition is an event, not certain to occur, which must
    occur, unless its non-occurrence is excused, BEFORE performance under a
    contract becomes due." Restatement (Second) of Contracts § 224 (1981).
    "Conditions precedent are disfavored and will not be read into a
    contract unless required by plain, unambiguous language." Effects
    Associates, 908 F.2d at 559 n. 7.] and scope limitations):

    "Thus, if the terms of the Artistic License allegedly violated are both
    covenants and conditions, they may serve to limit the scope of the
    license and are governed by copyright law. If they are merely covenants,
    by contrast, they are governed by contract law. See Graham, 144 F.3d at
    236-37 (whether breach of license is actionable as copyright
    infringement or breach of contract turns on whether provision breached
    is condition of the license, or mere covenant); Sun Microsystems, 188
    F.3d at 1121 (following Graham; independent covenant does not limit
    scope of copyright license). . . . Having determined that the terms of
    the Artistic License are enforceable copyright conditions, we remand. .
    .."

    Here's a snippet from the Second Circuit's Graham v. James decision:

    "Moreover, Graham's failure to credit James with the copyright on the C
    version did not itself amount to copyright infringement. According to
    Nimmer, "The generally prevailing view in this country under copyright
    law has been that an author who sells or licenses her work does not have
    an inherent right to be credited as author of the work. In line with
    that general rule, it has been held not to infringe an author's
    copyright for one who is licensed to reproduce the work to omit the
    author's name." 3 Nimmer on Copyright, supra, § 8D.03[A], at 8D-32
    (citations omitted). . . The construction of the licensing agreement is
    governed by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391
    F.2d 150, 153 (2d Cir.1968). Generally speaking, New York respects a
    presumption that terms of a contract are covenants rather than
    conditions. See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141,
    147 (2d Cir.1985) ("In the absence of more compelling evidence that the
    parties intended to create a condition, the negotiation provision must
    be construed as a promise or covenant."); Warth v. Greif, 121 A.D. 434,
    106 N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
    than conditions precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908)."

    http://www.nytimes.com/2008/08/14/te...14commons.html

    "Mr. Jacobsen said he believed that the court’s ruling was significant
    for the free software movement because it had thrived not on monetary
    gain but on individual credit for contributions.

    “We don’t charge for this and so all we really get is credit,” he said,
    adding that anyone is free to use and modify the programming
    instructions created by his group as long as they retain the credit and
    distribute them with the programmer’s instructions."

    Now see above regarding "Graham's failure to credit James with the
    copyright on the C version did not itself amount to copyright
    infringement. . . . "

    CAFC clearly erred regarding copyright liability.

    regards,
    alexander.

    --
    http://gng.z505.com/index.htm
    (GNG is a derecursive recursive derecursion which pwns GNU since it can
    be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    too, whereas GNU cannot.)

  7. Re: Ruling Is a Victory for Supporters of Free Software

    From comments at

    http://www.patentlyo.com/patent/2008...ource-lic.html
    (Open Source License Conditions Enforceable Through Copyright Law)

    -------
    Posted by: smashmouth football | Aug 14, 2008 at 07:17 PM

    I think that these copyleft licenses are great and all, but this
    decision ought to be rubbing people the wrong way. Essentially, the
    court found that breach of a contract clause (attribution) can give rise
    to "copyright infringement!" The court bent over backwards to make
    attribute a "condition" on the license grant, but I was left entirely
    unconvinced.

    The grant was purposefully broad. It does not seem that the person
    breached the granting clause. They breached other provisions.

    This is bad because most grants have some "catch-all" language that
    states: Licensor grants to licensee a non-exclusive right to do x under
    Licensor's patents [copyrights], provided licensee complies with the
    terms of this agreement. Does that mean ANY violation of the contract
    gives rise to an infringement? E.g. if you make ONE late payment and
    you're now an infringer? Yikes!

    That said, presumably a licensor can terminate the agreement for breach
    and then on-going activity would be infringement. But that is simply not
    what this court has done.

    All around, really, not a good day for the consumers.

    Posted by: mmmbeer | Aug 14, 2008 at 07:57 PM

    Do you want to hear three judges and two attorneys confused about
    copyright law? Take a listen to the audio. I did, and I am just shaking
    my head thinking that copyright law is not their bag.

    After clicking the following link, type "08-1001" in the Case Number
    block:

    http://oralarguments.cafc.uscourts.gov/searchscript.asp
    -------

    :-)

    regards,
    alexander.

    Alexander Terekhov wrote:
    >
    > Tim Smith wrote:
    > [...]
    > > And that's what this appeal was about. Plaintiff wanted an injunction
    > > to stop defendant from using P's work. Such an injunction is a lot
    > > easier to get in a copyright case than in a contract case. Defendant
    > > said that his violation (if any) was not of copyright, but rather of
    > > contract. That is, his argument is that everything he was doing (making
    > > and distributing copies and derivative works) is within the scope of the
    > > license. The requirements of the license (attribution, source code, and
    > > so forth), D claims, are promises of the licensee, much like my promise
    > > of royalties in the CD hypothetical. So, even if D is found to have
    > > violated those terms of the license, it is a contract violation, not a
    > > copyright issue.
    > >
    > > The district court agreed. The appellate court decided that this was
    > > incorrect. Those conditions weren't promises made by the licensee, they
    > > were conditions under which the licensor is willing to grant a license.
    > > If you don't obey them, you don't have a license, and so the copying and
    > > distribution is not a contract problem--it is a copyright problem.
    > >
    > > As the court put it:

    >
    > The Federal Circuit cited to the Graham v. James decision and then
    > refused to accept the Second Circuit as authority for it's decision that
    > the covenants in the JMRI case were actually conditions (precedent)
    > somehow limiting the scope (CAFC seems to utterly confuse conditions
    > precedent ["A condition is an event, not certain to occur, which must
    > occur, unless its non-occurrence is excused, BEFORE performance under a
    > contract becomes due." Restatement (Second) of Contracts § 224 (1981).
    > "Conditions precedent are disfavored and will not be read into a
    > contract unless required by plain, unambiguous language." Effects
    > Associates, 908 F.2d at 559 n. 7.] and scope limitations):
    >
    > "Thus, if the terms of the Artistic License allegedly violated are both
    > covenants and conditions, they may serve to limit the scope of the
    > license and are governed by copyright law. If they are merely covenants,
    > by contrast, they are governed by contract law. See Graham, 144 F.3d at
    > 236-37 (whether breach of license is actionable as copyright
    > infringement or breach of contract turns on whether provision breached
    > is condition of the license, or mere covenant); Sun Microsystems, 188
    > F.3d at 1121 (following Graham; independent covenant does not limit
    > scope of copyright license). . . . Having determined that the terms of
    > the Artistic License are enforceable copyright conditions, we remand. .
    > ."
    >
    > Here's a snippet from the Second Circuit's Graham v. James decision:
    >
    > "Moreover, Graham's failure to credit James with the copyright on the C
    > version did not itself amount to copyright infringement. According to
    > Nimmer, "The generally prevailing view in this country under copyright
    > law has been that an author who sells or licenses her work does not have
    > an inherent right to be credited as author of the work. In line with
    > that general rule, it has been held not to infringe an author's
    > copyright for one who is licensed to reproduce the work to omit the
    > author's name." 3 Nimmer on Copyright, supra, § 8D.03[A], at 8D-32
    > (citations omitted). . . The construction of the licensing agreement is
    > governed by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391
    > F.2d 150, 153 (2d Cir.1968). Generally speaking, New York respects a
    > presumption that terms of a contract are covenants rather than
    > conditions. See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141,
    > 147 (2d Cir.1985) ("In the absence of more compelling evidence that the
    > parties intended to create a condition, the negotiation provision must
    > be construed as a promise or covenant."); Warth v. Greif, 121 A.D. 434,
    > 106 N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
    > than conditions precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908)."
    >
    > http://www.nytimes.com/2008/08/14/te...14commons.html
    >
    > "Mr. Jacobsen said he believed that the court’s ruling was significant
    > for the free software movement because it had thrived not on monetary
    > gain but on individual credit for contributions.
    >
    > “We don’t charge for this and so all we really get is credit,” he said,
    > adding that anyone is free to use and modify the programming
    > instructions created by his group as long as they retain the credit and
    > distribute them with the programmer’s instructions."
    >
    > Now see above regarding "Graham's failure to credit James with the
    > copyright on the C version did not itself amount to copyright
    > infringement. . . . "
    >
    > CAFC clearly erred regarding copyright liability.
    >
    > regards,
    > alexander.
    >


    --
    http://gng.z505.com/index.htm
    (GNG is a derecursive recursive derecursion which pwns GNU since it can
    be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    too, whereas GNU cannot.)

  8. Re: Ruling Is a Victory for Supporters of Free Software

    On 2008-08-15, Alexander Terekhov wrote:
    > From comments at
    >
    > http://www.patentlyo.com/patent/2008...ource-lic.html
    > (Open Source License Conditions Enforceable Through Copyright Law)
    >
    > -------
    > Posted by: smashmouth football | Aug 14, 2008 at 07:17 PM
    >
    > I think that these copyleft licenses are great and all, but this
    > decision ought to be rubbing people the wrong way. Essentially, the
    > court found that breach of a contract clause (attribution) can give rise
    > to "copyright infringement!" The court bent over backwards to make
    > attribute a "condition" on the license grant, but I was left entirely
    > unconvinced.
    >
    > The grant was purposefully broad. It does not seem that the person
    > breached the granting clause. They breached other provisions.
    >
    > This is bad because most grants have some "catch-all" language that
    > states: Licensor grants to licensee a non-exclusive right to do x under
    > Licensor's patents [copyrights], provided licensee complies with the
    > terms of this agreement. Does that mean ANY violation of the contract
    > gives rise to an infringement? E.g. if you make ONE late payment and
    > you're now an infringer? Yikes!


    Never rented an apartment ever have you?

    That's the nature of contracts. If you are in breach, then you
    are in deep doo-doo. All of your legal rights under the contract
    have evaporated.

    This is pretty much 1208 type stuff, nevermind 2008.

    This is why GPL is constructed in the manner that it is.

    >
    > That said, presumably a licensor can terminate the agreement for breach
    > and then on-going activity would be infringement. But that is simply not
    > what this court has done.
    >
    > All around, really, not a good day for the consumers.
    >
    > Posted by: mmmbeer | Aug 14, 2008 at 07:57 PM
    >
    > Do you want to hear three judges and two attorneys confused about
    > copyright law? Take a listen to the audio. I did, and I am just shaking
    > my head thinking that copyright law is not their bag.
    >
    > After clicking the following link, type "08-1001" in the Case Number
    > block:
    >
    > http://oralarguments.cafc.uscourts.gov/searchscript.asp
    > -------
    >
    >:-)
    >
    > regards,
    > alexander.
    >
    > Alexander Terekhov wrote:
    >>
    >> Tim Smith wrote:
    >> [...]
    >> > And that's what this appeal was about. Plaintiff wanted an injunction
    >> > to stop defendant from using P's work. Such an injunction is a lot
    >> > easier to get in a copyright case than in a contract case. Defendant
    >> > said that his violation (if any) was not of copyright, but rather of
    >> > contract. That is, his argument is that everything he was doing (making
    >> > and distributing copies and derivative works) is within the scope of the
    >> > license. The requirements of the license (attribution, source code, and
    >> > so forth), D claims, are promises of the licensee, much like my promise
    >> > of royalties in the CD hypothetical. So, even if D is found to have
    >> > violated those terms of the license, it is a contract violation, not a
    >> > copyright issue.
    >> >
    >> > The district court agreed. The appellate court decided that this was
    >> > incorrect. Those conditions weren't promises made by the licensee, they
    >> > were conditions under which the licensor is willing to grant a license.
    >> > If you don't obey them, you don't have a license, and so the copying and
    >> > distribution is not a contract problem--it is a copyright problem.
    >> >
    >> > As the court put it:

    >>
    >> The Federal Circuit cited to the Graham v. James decision and then
    >> refused to accept the Second Circuit as authority for it's decision that
    >> the covenants in the JMRI case were actually conditions (precedent)
    >> somehow limiting the scope (CAFC seems to utterly confuse conditions
    >> precedent ["A condition is an event, not certain to occur, which must
    >> occur, unless its non-occurrence is excused, BEFORE performance under a
    >> contract becomes due." Restatement (Second) of Contracts § 224 (1981).
    >> "Conditions precedent are disfavored and will not be read into a
    >> contract unless required by plain, unambiguous language." Effects
    >> Associates, 908 F.2d at 559 n. 7.] and scope limitations):
    >>
    >> "Thus, if the terms of the Artistic License allegedly violated are both
    >> covenants and conditions, they may serve to limit the scope of the
    >> license and are governed by copyright law. If they are merely covenants,
    >> by contrast, they are governed by contract law. See Graham, 144 F.3d at
    >> 236-37 (whether breach of license is actionable as copyright
    >> infringement or breach of contract turns on whether provision breached
    >> is condition of the license, or mere covenant); Sun Microsystems, 188
    >> F.3d at 1121 (following Graham; independent covenant does not limit
    >> scope of copyright license). . . . Having determined that the terms of
    >> the Artistic License are enforceable copyright conditions, we remand. .
    >> ."
    >>
    >> Here's a snippet from the Second Circuit's Graham v. James decision:
    >>
    >> "Moreover, Graham's failure to credit James with the copyright on the C
    >> version did not itself amount to copyright infringement. According to
    >> Nimmer, "The generally prevailing view in this country under copyright
    >> law has been that an author who sells or licenses her work does not have
    >> an inherent right to be credited as author of the work. In line with
    >> that general rule, it has been held not to infringe an author's
    >> copyright for one who is licensed to reproduce the work to omit the
    >> author's name." 3 Nimmer on Copyright, supra, § 8D.03[A], at 8D-32
    >> (citations omitted). . . The construction of the licensing agreement is
    >> governed by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391
    >> F.2d 150, 153 (2d Cir.1968). Generally speaking, New York respects a
    >> presumption that terms of a contract are covenants rather than
    >> conditions. See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141,
    >> 147 (2d Cir.1985) ("In the absence of more compelling evidence that the
    >> parties intended to create a condition, the negotiation provision must
    >> be construed as a promise or covenant."); Warth v. Greif, 121 A.D. 434,
    >> 106 N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
    >> than conditions precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908)."
    >>
    >> http://www.nytimes.com/2008/08/14/te...14commons.html
    >>
    >> "Mr. Jacobsen said he believed that the court’s ruling was significant
    >> for the free software movement because it had thrived not on monetary
    >> gain but on individual credit for contributions.
    >>
    >> “We don’t charge for this and so all we really get is credit,” he said,
    >> adding that anyone is free to use and modify the programming
    >> instructions created by his group as long as they retain the credit and
    >> distribute them with the programmer’s instructions."
    >>
    >> Now see above regarding "Graham's failure to credit James with the
    >> copyright on the C version did not itself amount to copyright
    >> infringement. . . . "
    >>
    >> CAFC clearly erred regarding copyright liability.
    >>
    >> regards,
    >> alexander.
    >>

    >
    > --
    > http://gng.z505.com/index.htm
    > (GNG is a derecursive recursive derecursion which pwns GNU since it can
    > be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    > too, whereas GNU cannot.)



    --
    Sure, I could use iTunes even under Linux. However, I have |||
    better things to do with my time than deal with how iTunes doesn't / | \
    want to play nicely with everyone else's data (namely mine). I'd
    rather create a DVD using those Linux apps we're told don't exist.

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  9. Re: Ruling Is a Victory for Supporters of Free Software


    JEDIDIAH wrote:
    [...]
    > Never rented an apartment ever have you?
    >
    > That's the nature of contracts. If you are in breach, then you
    > are in deep doo-doo. All of your legal rights under the contract
    > have evaporated.


    I gather that if you'll ever have an apartment to rent and your tenant
    at some point dares to delay a payment (or shares an apartment with
    someone in violation of contract "condition" prohibiting doing that)
    you're going to shoot him dead as trespasser and tell the court that all
    his or her occupancy rights were magically evaporated without any notice
    on breach of contract. This is exactly Eben Moglen's theory. But don't
    you know that Eben Moglen qualifies his theory with postulation that "a
    license is NOT a contract", JEDIDIAH? What's your take on that?

    --
    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.)

  10. Re: Ruling Is a Victory for Supporters of Free Software

    On Fri, 15 Aug 2008 20:48:27 +0200, Alexander Terekhov wrote:

    > JEDIDIAH wrote:
    > [...]
    >> Never rented an apartment ever have you?
    >>
    >> That's the nature of contracts. If you are in breach, then you
    >> are in deep doo-doo. All of your legal rights under the contract
    >> have evaporated.

    >
    > I gather that if you'll ever have an apartment to rent and your tenant
    > at some point dares to delay a payment (or shares an apartment with
    > someone in violation of contract "condition" prohibiting doing that)
    > you're going to shoot him dead as trespasser and tell the court that all
    > his or her occupancy rights were magically evaporated without any notice
    > on breach of contract. This is exactly Eben Moglen's theory. But don't
    > you know that Eben Moglen qualifies his theory with postulation that "a
    > license is NOT a contract", JEDIDIAH? What's your take on that?


    Ouch!
    That sounds like a deadly game of Russian Roulette with a little circular
    reasoning mixed in.

    --
    Moshe Goldfarb
    Collector of soaps from around the globe.
    Please visit The Hall of Linux Idiots:
    http://linuxidiots.blogspot.com/

  11. Re: Ruling Is a Victory for Supporters of Free Software

    * Moshe Goldfarb. peremptorily fired off this memo:

    > On Fri, 15 Aug 2008 20:48:27 +0200, Alexander Terekhov wrote:
    >
    >> JEDIDIAH wrote:
    >> [...]
    >>> Never rented an apartment ever have you?
    >>>
    >>> That's the nature of contracts. If you are in breach, then you
    >>> are in deep doo-doo. All of your legal rights under the contract
    >>> have evaporated.

    >>
    >> I gather that if you'll ever have an apartment to rent and your tenant
    >> at some point dares to delay a payment (or shares an apartment with
    >> someone in violation of contract "condition" prohibiting doing that)
    >> you're going to shoot him dead as trespasser and tell the court that all
    >> his or her occupancy rights were magically evaporated without any notice
    >> on breach of contract. This is exactly Eben Moglen's theory. But don't
    >> you know that Eben Moglen qualifies his theory with postulation that "a
    >> license is NOT a contract", JEDIDIAH? What's your take on that?

    >
    > Ouch!
    > That sounds like a deadly game of Russian Roulette with a little circular
    > reasoning mixed in.


    Nah. Terekhov's making an analogy to try to equate one situation in
    property law with another situation in copyright law, is what it sounds
    like to me.

    I know lawyers like to wave their hands while they talk, but I'm not
    sure it affects judges.

    --
    "It is the creationists who blasphemously are claiming that God is cheating
    us in a stupid way."
    -- J. W. Nienhuys

  12. Re: Ruling Is a Victory for Supporters of Free Software

    On Fri, 15 Aug 2008 12:37:22 -0500, JEDIDIAH wrote:

    >> This is bad because most grants have some "catch-all" language that
    >> states: Licensor grants to licensee a non-exclusive right to do x under
    >> Licensor's patents [copyrights], provided licensee complies with the
    >> terms of this agreement. Does that mean ANY violation of the contract
    >> gives rise to an infringement? E.g. if you make ONE late payment and
    >> you're now an infringer? Yikes!

    >
    > Never rented an apartment ever have you?



    Good god, there are some morons out there. yeah, if you break an
    agreement then you've, um, broken an agreement. All bets are off. Do
    you even need a lawyer for that? this is playground stuff. make a
    promise, break said promise, and then expect others to fulfill their end
    of the bargain?


    -Thufir

  13. Re: Ruling Is a Victory for Supporters of Free Software

    On Fri, 15 Aug 2008 20:50:43 GMT, thufir wrote:

    > On Fri, 15 Aug 2008 12:37:22 -0500, JEDIDIAH wrote:
    >
    >>> This is bad because most grants have some "catch-all" language that
    >>> states: Licensor grants to licensee a non-exclusive right to do x under
    >>> Licensor's patents [copyrights], provided licensee complies with the
    >>> terms of this agreement. Does that mean ANY violation of the contract
    >>> gives rise to an infringement? E.g. if you make ONE late payment and
    >>> you're now an infringer? Yikes!

    >>
    >> Never rented an apartment ever have you?

    >
    >
    > Good god, there are some morons out there. yeah, if you break an
    > agreement then you've, um, broken an agreement. All bets are off. Do
    > you even need a lawyer for that? this is playground stuff. make a
    > promise, break said promise, and then expect others to fulfill their end
    > of the bargain?
    >
    >
    > -Thufir


    As a property owner I can assure you it's a lot deeper than that.
    I wish it were not, but it is.

    The courts are clogged to the rafters with landlord tenant disputes,
    unfortunately and having been on both sides of the bar I have a very good
    understanding of how things work.


    --
    Moshe Goldfarb
    Collector of soaps from around the globe.
    Please visit The Hall of Linux Idiots:
    http://linuxidiots.blogspot.com/

  14. Re: Ruling Is a Victory for Supporters of Free Software

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

    Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)
    From: dtemeles@nvalaw.com
    Date: Fri, 15 Aug 2008 14:48:12 -0400

    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
    with a high degree of care to minimize a licensee's risk of
    unintentionally infringing the copyrights as a result of miinterpreting
    the provisions.

    Another side note - many licesne agreement issues are brought in state
    courts. Section 301(a) of the Copyright Act, however, preempts any
    state court from hearing or deciding any cause of action which is
    equivalent to a copyright claim. If the CAFC's position is indeed the
    law of the land, then any cause of action relating to a breach of a
    provision in a license agreement that merely mentions the word
    "condition" (or some synonym thereof), or that could conceivably be
    interpreted as a condition precedent, will need to be decided by a
    federal court. Otherwise, the parties run the risk of going through a
    full trial in state court only to find that the state court has no
    jurisdiction to even hear the matter in the first place because the
    breach in fact constitutes an infringement.

    Ultimately, the only people that will benefit from this decision are
    attorneys. All open source licenses will need to be modified if the
    decision stands ....

    Quoting Ben Tilly :

    > On Wed, Aug 13, 2008 at 4:46 PM, Lawrence Rosen wrote:
    >> Ben Tilly asserted:
    >>> Therefore it was through this list that they got connected with the
    >>> legal help they needed.

    >>
    >> To make sure that credit goes where it is really due: the connection between
    >> Mr. Jacobsen and his attorney was made on the EFF list. If anyone, the
    >> Electronic Frontier Foundation should get credit for providing lots of pro
    >> bono advice to people on the edge of technology.

    >
    > This I had not known. Thank you for the further
    > information/correction. I only knew what I said, which is that I
    > first heard of this case through an email here, and I tried to forward
    > them on. I have no idea how many other places they looked for and got
    > help as well.
    >
    >> There are many EFF fans on this list. EFF does good work.

    >
    > Yes, and yes they do. :-)
    >
    > I should donate again...
    >
    > Ben
    >


    Freetard Ben responded:

    http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15937

    Another attorney responded to freetard Ben:

    http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15939

    Subject: RE: Strong Court Ruling Upholds the Artistic License (fwd)
    From: "Marc Whipple"
    Date: Fri, 15 Aug 2008 14:59:33 -0500

    -----Original Message-----
    From: Ben Tilly [mailto:btilly@gmail.com]
    Sent: Friday, August 15, 2008 2:19 PM
    To: dtemeles@nvalaw.com
    Cc: license-discuss@opensource.org
    Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)

    On Fri, Aug 15, 2008 at 11:48 AM, wrote:
    >> If the CAFC's position is indeed the law of the land, then
    >> any cause of action relating to a breach of a provision in a license
    >> agreement that merely mentions the word "condition" (or some synonym
    >> thereof), or that could conceivably be interpreted as a condition
    >> precedent, will need to be decided by a federal court. Otherwise,
    >> the parties run the risk of going through a full trial in state
    >> court only to find that the state court has no jurisdiction to even
    >> hear the matter in the first place because the breach in fact
    >> constitutes an infringement.


    >That is a technical matter that I have no opinion on.


    [Marc Whipple] I am a lawyer, but this is not legal advice. Always
    consult an attorney licensed in your jurisdiction and familiar with the
    relevant law before making legal decisions.

    I think you probably mean, "I do not consider myself able to offer an
    informed opinion on this point," but the way it was phrased sounds a
    little dismissive. If you didn't mean it that way, accept my apology if
    I've over-read your statement.

    That being said, calling this a "technical matter" is oversimplification
    to a rather radical degree. As an attorney who often walks the line
    between questions of Federal and State jurisdiction it was one of my
    first concerns when I read a summary of the decision this morning. The
    utter pre-emption of matters even remotely concerned with the Copyright
    Act means that this is a question of the utmost importance to anyone who
    has anything to do with such licenses. I haven't read the full decision
    yet, and so won't comment on whether the assertion the OP makes is
    accurate, but if it is, he is right to be concerned. Among other things
    it would mean that the enforcement of OS licenses just got, at the bare
    minimum, a lot more expensive.

    MW



    He!He! Ha!Ha! Ho!Ho!

    regards,
    alexander.

    --
    http://gng.z505.com/index.htm
    (GNG is a derecursive recursive derecursion which pwns GNU since it can
    be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    too, whereas GNU cannot.)

  15. Re: Ruling Is a Victory for Supporters of Free Software

    * Alexander Terekhov the legal troll peremptorily fired off this memo:

    > He!He! Ha!Ha! Ho!Ho!


    Just pointing out the whole point of your post.

    --
    "I believe the use of noise to make music will increase until we reach a
    music produced through the aid of electrical instruments which will make
    available for musical purposes any and all sounds that can be heard."
    -- composer John Cage, 1937

  16. Re: Ruling Is a Victory for Supporters of Free Software

    On 2008-08-15, thufir wrote:
    > On Fri, 15 Aug 2008 12:37:22 -0500, JEDIDIAH wrote:
    >
    >>> This is bad because most grants have some "catch-all" language that
    >>> states: Licensor grants to licensee a non-exclusive right to do x under
    >>> Licensor's patents [copyrights], provided licensee complies with the
    >>> terms of this agreement. Does that mean ANY violation of the contract
    >>> gives rise to an infringement? E.g. if you make ONE late payment and
    >>> you're now an infringer? Yikes!

    >>
    >> Never rented an apartment ever have you?

    >
    >
    > Good god, there are some morons out there. yeah, if you break an
    > agreement then you've, um, broken an agreement. All bets are off. Do
    > you even need a lawyer for that? this is playground stuff. make a


    This "playground stuff" is what keep lawyers employed.

    > promise, break said promise, and then expect others to fulfill their end
    > of the bargain?
    >
    >
    > -Thufir



    --
    Sophocles wants his cut. |||
    / | \

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    ----------------------------------------------------------
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  17. Re: Ruling Is a Victory for Supporters of Free Software

    On 2008-08-16, Alexander Terekhov wrote:
    > http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
    >
    > Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)
    > From: dtemeles@nvalaw.com
    > Date: Fri, 15 Aug 2008 14:48:12 -0400


    [deletia]

    > 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


    What "uncertainty"?

    This is the stated design goal of the license.

    > 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.


    [deletia]

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    Sophocles wants his cut. |||
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  18. Re: Ruling Is a Victory for Supporters of Free Software

    JEDIDIAH wrote:
    > On 2008-08-16, Alexander Terekhov wrote:
    >> http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15936
    >>
    >> Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)
    >> From: dtemeles@nvalaw.com
    >> Date: Fri, 15 Aug 2008 14:48:12 -0400

    >
    > [deletia]
    >
    >> 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

    >
    > What "uncertainty"?
    >
    > This is the stated design goal of the license.
    >
    >> 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.

    >
    > [deletia]
    >


    There are few really certain things in life. Some of those are death,
    taxes and the fact that a federal judge is looming in the background
    with a big red "preempted" stamp in his hand, just waiting to apply it
    to the GPL on its face.

    That background scene is far away though. The Jacobsen decision was
    contrary to the controlling authority (the individual Courts of Appeals)
    in every other Federal Circuit in U.S. jurisdiction. The Federal Circuit
    has original jurisdiction in patent cases. Unless a copyright dispute is
    raised in the context of a patent dispute the Federal Circuit doesn't
    even hear copyright cases. (Read the jurisdictional recitation in
    Jacobsen v. Katzer.)

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

    Take a deep breath and hold it Jedidiah, while we all wait for this
    decision to become the controlling authority in another copyright case.
    I'm sure we'll see you again in about twenty years.

    Sincerely,
    Rjack



  19. Re: Ruling Is a Victory for Supporters of Free Software

    Rjack writes:

    > There are few really certain things in life. Some of those are death,
    > taxes and the fact that a federal judge is looming in the background
    > with a big red "preempted" stamp in his hand, just waiting to apply it
    > to the GPL on its face.


    Your idea of what constitutes "fact" is not unlike your ideas about what
    constitutes "law".

    > That background scene is far away though.


    Quite so. And if it were to draw closer, I think you'd see quite a few
    details turn out other than you thought...

    --
    David Kastrup, Kriemhildstr. 15, 44793 Bochum

  20. Re: Ruling Is a Victory for Supporters of Free Software


    http://blog.actonline.org/2008/08/be-careful-what.html

    -------
    August 21, 2008

    Be Careful What You Wish For: How the Jacobsen v. Katzer Decision Could
    Hurt the Free Software Movement

    Last week, the U.S. Court of Appeals for the Federal Circuit, in
    Jacobsen v. Katzer, issued a very important decision in a case of first
    impression relating to the enforcement of software licenses. In
    particular, it was the first federal appellate court decision to clarify
    whether failure to follow obligations imposed by an open-source license
    results in copyright infringement or breach of contract. The
    distinction is important, as it controls the remedies available for such
    a failure, and can impact the question of whether lawsuits can be filed
    in state or federal court. As Larry Lessig says, “trust me, this is
    huge.” This may be true in ways that the free software movement did not
    foresee – and ways that the movement may very well regret.

    [...]

    Make no mistake – this decision strengthens the hand of copyright
    holders, a large number of which are the types of commercial
    organizations that insist on being paid for their hard work when their
    products are successful in the marketplace. By pressing for a
    short-term victory, the free software movement may have sown the seeds
    of its own defeat.
    -------

    regards,
    alexander.

    --
    http://gng.z505.com/index.htm
    (GNG is a derecursive recursive derecursion which pwns GNU since it can
    be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
    too, whereas GNU cannot.)

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