Comments on: GPL Heads To Court In US

By: OSS Watch team blog » Blog Archive » Covenants or Conditions? Federal Circuit Clarifies Important FOSS Licensing Question

Thu, 14 Aug 2008 14:18:28 +0000

[...] In this blog we’ve talked before about the vexed question of whether free and open source software (FOSS) licences should be primarily considered as contracts or bare licences. A useful tool for considering this question (in the US at least) became available today in the form of a decision by the US Federal Circuit Court of Appeals (pdf). To briefly sketch the complex background to this decision, Robert Jacobsen, one of the authors of the JNRI Project – a set of java tools for controlling model trains – tried to get an injunction in the California court against Matthew Katzer, an owner of a model train software business for infringement of copyright. The entire vexed and ugly history of the dispute can be read on the JNRI project Sourceforge page; it includes accusations of patent infringement, libel, unfair competition and price-fixing. Our concern here though is just with the copyright claim. Jacobsen had asked the California court to stop Katzer ever again distributing JNRI code without copyright notices (Katzer admitted doing so but had already pulled the distribution by the time the court came to consider the question). [...]

By: Rowan Wilson

Rowan Wilson — Thu, 27 Sep 2007 13:33:02 +0000

Thanks for the assessment, Daniel. I think I also saw that exact comment on OSI License Discuss, as well as Linux.com and Usenet. Am I right in thinking you are the Daniel Wallace who unsuccessfully brought an anti-trust case against the FSF back in 2005?

Of course, events have moved on in the last few days. The reconciliatory noises made in the original thread have been followed up by an apology from Monsoon for violating the GPL, although its specifics reveal there is still some confusion about the terms of the GPL in the Monsoon camp. A day later, Daniel Ravicher of the SLFC responded saying that he welcomes Monsoon’s acknowledgement of the violation. However…

“I can confirm that we are discussing settlement,” Ravicher says, “but — contrary to what many in the press seem to believe — no agreement has been reached. Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance.”

Ravicher’s comments support the view that the SFLC are making a public point with this action.

By: daniel wallace

daniel wallace — Sat, 22 Sep 2007 14:25:37 +0000

The District Court (E.D.N.Y.) will dismiss the SFLC complaint since it is a simple contract claim and not a scope of use infringement claim.

1.) There is no “automatic” contract rescission under New York State common
law. The same District Court in which the SFLC has chosen to file its claim has ruled:

“. . . rescission of the contract only occurs upon affirmative acts by
the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (“New York law does not presume the rescission or abandonment of a contract and the party asserting rescission or abandonment has the burden of proving it”).”; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. April 30, 2007).

2.) A Federal Court of Appeals has ruled a that a copyright contract rescission claim in federal court is preempted by 17 USC sec. 301(a):

“Because Santa Rosa seeks rescission of his contract, if we were to grant him the relief that he sought, we would be required to determine his ownership rights by reference to the Copyright Act. In such a case, there is little question that we would be merely determining whether Santa Rosa was entitled to compensation because of “mere copying” or “performance, distribution or display” of his recordings. Data Gen. Corp., 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa Rosa’s rescission claim.”; Santa-Rosa v. Combo Records, 05-2237 (1st Cir. Dec. 15, 2006).