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Re: Psystar's legal reply brief in response to Apple


From: ZnU
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:57 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <address@hidden>,
 Alexander Terekhov <address@hidden> wrote:

> ZnU wrote:
> [...]
> > > Once a copy is made under the GPL, it falls under "first sale" on the
> > > only cause of action is the contract breach, not copyright infringement.
> > 
> > I'm not sure I'm exactly grasping your point. Yes, the GPL, once
> > accepted, is a contract. But it's a contract backed up by the force of
> > copyright law, because if you don't accept the contract you have no
> > right to distribute additional copies of the software.
> 
> You have no right to make a copy in the first place so you have to
> accept the license contract in order to make a copy.
> 
> But after a copy has been made under the license contract, that copy
> falls under 17 USC 109 (which limits exclusive distribution right of the
> copyright owner) and the only cause of action regarding non-compliance
> with the distribution requirements is a contract breach claim, not
> copyright infringement claim.

OK, I understand your argument. But I'm not sure I buy it. Are you 
saying if I sign a contract with someone that says I can make as many 
copies of their software as I want for $5 each, and then go and make a 
bunch of copies and don't pay for them, I have merely breached a 
contract and not committed copyright violation? I sort of doubt a court 
would find that way.

[snip]

> And what are the economic damages in thwe case of publicly available 
> FREE software?
> 
> <chuckles>
> 
> Also relevant:
> 
> http://www.goodwinprocter.com/~/media/Files/Publications/Newsletters/IP%20Aler
> t/2009/Jacobsen_v_Katzer_Court_Again_Denies_Preliminary_Injunction_for_Breach_
> of_Open_Source_License.ashx
> 
> (Jacobsen v. Katzer: District Court Again Denies Preliminary Injunction
> for
> Breach of Open Source License)
> 
> "... plaintiffs seeking to enforce an open source license would be well
> advised to introduce evidence of economic harm suffered or the threat of
> imminent economic harm if they seek injunctive relief."

This does not really address the copyright infringement vs. contract 
breech issue.

But either way, it probably _is_ the case that failing to comply with 
the letter of the GPL, but in a way that damages nobody, is not legally 
actionable. So, for instance, if you distribute GPL software in 
executable form, but fail to provide or offer to provide source, this is 
probably not actionable if the source is trivially available elsewhere.

-- 
"The game of professional investment is intolerably boring and over-exacting to
anyone who is entirely exempt from the gambling instinct; whilst he who has it
must pay to this propensity the appropriate toll." -- John Maynard Keynes


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