More context:

http://jmri.net/k/docket/index.shtml
http://jmri.net/k/docket/cafc-pi-1/index.shtml

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.)

http://jmri.net/k/docket/cafc-pi-1/39.pdf
(JMRI's post-argument "citation of supplemental authority")

http://jmri.net/k/docket/cafc-pi-1/40.pdf
(Amici's "response")

http://jmri.net/k/docket/cafc-pi-1/41.pdf
(Katzer's response)

I'm shocked by Amici's citation of Nimmer on Copyright talking about
"appropriate contractual provisions" and "appropriate contract
construction"... What!? I thought that licenses are not contracts in
"free as in free speech" world.

LOL.

regards,
alexander.

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

It seems to me that an appropriate punishment for presenting such nonsense
from both sides should be that both attorneys are barred from ever
litigating in court again.  Clearly neither knew how to present a case.

The amicus brief file by Moglen and his minions framed the issue pretty
squarely:

"The District Court's decision that the asserted violations of the Artistic
License at issue in this case sound in contract, not copyright, was
erroneous. If the
decision were applied broadly, it could disrupt the settled expectations of
literally
millions of copyright holders who have depended upon the copyright system to
secure the right to enforce public licenses....

....Traditional copyright licenses grant exclusive rights in exchange for
money
or other remuneration. Public licensors leverage the exclusive rights that
copyright
confers for public good, for example to secure freedom to derivative authors
and
users, or to enhance innovation. The conditions and limitations in public
licenses
are designed to increase the freedom of downstream authors and users without
imposing the typical copyright clearance burdens. One common condition of
public licenses is a requirement that prior to any distribution of the work
(or a
derivative version of the work), copyright notices and license provisions
included
in the original version must be copied and included in the distribution."

This seems like a plan to go "all in" as in the popular Hold-em poker game.
It is an opportunity for the circuit court to put this nonsense out of its
misery once and for all.

"Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the circumstances; but
the relation between the parties thereafter in respect of any suit brought must
be held to be contractual, and not an unlawful invasion of the rights of the
owner."

The same Court of Appeals for the Federal Circuit held in Storage Technology
Corporation v.Custom Hardware Engineering & Consulting, Inc.; 421 F.3d 1307
(CAFC) (2005):

"In light of their facts, those cases thus stand for the entirely unremarkable
principle that “uses” that violate a license agreement constitute copyright
infringement only when those uses would infringe in the absence of any license
agreement at all."

In the absence of any license at all, there is obviously no "right of
attribution" mentioned in 17 USC 106.

"Preemption with respect to other laws.
(a) On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of copyright
as specified by section 106 in works of authorship that are fixed in a tangible
medium of expression and come within the subject matter of copyright as
specified by sections 102 and 103, whether created before or after that date and
whether published or unpublished, are governed exclusively by this title.
Thereafter, no person is entitled to any such right or equivalent right in any
such work under the common law or statutes of any State."

Obviously Congress thinks that its members, and not Richard Stallman, are
empowered to write the copyright laws that apply to the general public.

Sincerely,
Rjack :}

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

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

                       COUNT VIII
              Breach of Contract (GPL License)
              ^^^^^^^^^^^^^^^^^^

(subsequent motion for preliminary injunction was denied
<http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20softwa...>)

and IBM (literally mentioned in Amici's "response" brief)

http://www.groklaw.net/article.php?story=20061123091221786
(The GPL, Stage Front and Center - IBM Answers SCO's Attack)

"SCO's GPL violations entitle IBM to at least nominal damages on the
Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design LLC
20 P.3d 388, 392 (Utah 2001) (explaining that it is "well settled"
that nominal damages are recoverable upon breach of contract); Kronos,
                                          ^^^^^^^^^^^^^^^^^^
Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)  ("Nominal damages
are always available in breach of contract action".). "
                        ^^^^^^^^^^^^^^^^^^

See the phrase "breach of contract"?

LOL.

regards,
alexander.

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

     "Nimmer ... support the proposition that a copyright
      licensor may recover in copyright for violations of
      a license condition ..."

That is, the argument states that since it is fine for a
contract to require attribution, it makes sense for a license
that requires it to be enforceable as well. It does not argue
that the license is a contract.

Suppose that a copyright license of mine states that:

*Before* you make use of my exclusive right(s) you must tell the world
that I am "Alexander The Great and Powerful."

That is a license condition (violation of which I may recover in
copyright.)

Got it now?

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.)

     'Concede that, if the owner had said, "If you go on and infringe
      my patent, I shall not attempt to enjoin you, but I shall
      subsequently sue you for infringement," the tort would not be
      waived;'

and that is similar to language contained in the GPL.

http://www.fsf.org/news/wallace-vs-fsf

"What is there left to test? The GPL is a software license, it is not a
contract."

Professional lawyers hired to defend FSF (REPLY BRIEF IN SUPPORT OF
DEFENDANT FREE SOFTWARE FOUNDATION, INC) to dismiss for failure to state
a claim:

"Plaintiff's mischaracterization of the GPL in his Response has no
bearing on the resolution of the pending Motion to Dismiss because the
Court can examine the GPL itself. "[T]o the extent that the terms of an
attached contract conflict with the allegations of the complaint, the
         ^^^^^^^^
contract controls."
^^^^^^^^

The court didn't examine the GPL contract but dismissed nevertheless
(disclaiming jurisdiction).

"The final judgment in Wallace v. Free Software Foundation, Inc.
constitutes a void judgment under Seventh Circuit precedent. Judge
Tinder granted dismissal [Red Hat and Novell’s Supp. App. at 12]
pursuant to F.R.Civ.P. Rule 12(b)(6) for failure to state a claim upon
which relief can be granted although the reason given was lack of
“antitrust injury” (lack of standing). In the Seventh Circuit, since the
decision in Frederiksen v. City of Lockport, 384 F.3d 437 at 438 (7th
Cir.
2004), issues of standing are required to be dismissed pursuant to
F.R.Civ.P. Rule 12(b)(1) for lack of subject matter-jurisdiction."

LOL.

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards