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Re: SFLC chooses wrong court


From: rjack
Subject: Re: SFLC chooses wrong court
Date: Fri, 28 Sep 2007 07:04:06 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv:1.7.2) Gecko/20040804 Netscape/7.2 (ax)

Alexander Terekhov wrote:
Tim Smith wrote:
  
In article <address@hidden>,
 rjack <address@hidden> wrote:
    
Failing to distribute source code is a contract breach and not a
violation of a work's permitted use under copyright law. There is
obviously no provision under U.S. copyright law to *force* a party who
has permission to copy and make derivative works to distribute those
copyrighted works. Those actions are solely a contractual matter.
      
Irrelevant, since plaintiff's claim is that Monsoon is not a party who
has permission to copy and make derivative works.
    

http://www.softwarefreedom.org/news/2007/sep/20/busybox/complaint.pdf

The complaint argues that Monsoon *lost* the rights to BusyBox code 
the moment it shipped object code without offering the source code 
also.

The complaint refers to attached "GNU General Public License, Version 
2" ("the License") [it refers to it more than a dozen of times!!!] 
seeking rescission of this contract (note that in the mean time 
Monsoon already cured alleged breach***) to begin with. Let's suppose 
that rescission will fly... is there anything in the GPL precluding 
Monsoon to become a party to GPL contract once again after rescission?

So how can you claim that Monsoon is not a party who has permission 
to copy and make derivative works?

Care to elaborate?

***) http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

"With respect to the General Public License... I am not persuaded 
based on this record that the release of the Gemini source code in 
July 2001 didn’t cure the breach."

regards,
alexander.

--
"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte
  
>From the Monsoon complaint  filed in the State of New York:

"Therefore, under the License, any party that redistributes BusyBox in a manner that does not
comply with the terms of the License immediately and automatically loses all rights granted under
it. As such, any rights Defendant may have had under the License to redistribute BusyBox were
automatically terminated the instant that Defendant made non-compliant distribution of the Infringing
Products or Firmware. Since that time, Defendant has had no right to distribute BusyBox,
or a modified version of BusyBox, under any circumstances or conditions."

>From the law of the State of New York:

“. . . 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).




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