Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Thufir Hawat wrote:
> On Thu, 19 Feb 2009 13:05:35 -0500, amicus_curious wrote:
>
>
> > Verizon openly distributes the Ationtec product.  That makes 
> > them a distributor and does not make Actiontec a Verizon agent.
> >  Even though Verizon is openly distributing a product that 
> > contains GPL licensed software, they do not provide the source.
> >  One has to go to some upstream locatoion in order to obtain 
> > source.
>
> You're begging the question and haven't established that Verizon 
> is a distributor *in the sense which applies here*.
>
> The critical point is that the OEM is Actiontec.  How does 
> Verizon obtain the routers?  Actiontec distributes the routers to
>  Verizon.  It seems debatable that Verizon is even a distributor 
> in this sense as Verizon didn't install Linux onto the router.
This may clarify what is being claimed:

***********************************************************************
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

————————————————————x
ERIK ANDERSEN, an individual,
and ROB LANDLEY, an individual,
Plaintiffs,

Civil Action No. CV

-against-

VERIZON COMMUNICATIONS, INC.,
a Delaware corporation,
Defendant.
————————————————————x

12. Upon information and belief, the Firmware contains BusyBox, or a
modified version of BusyBox that is substantially similar to
BusyBox, in object code or executable form. Distribution of the
Firmware, either as part of the Infringing Product or by itself,
thus inherently includes distribution of BusyBox and, as such,
Defendant is required to have Plaintiffs’ permission to make any
such distribution. The only such permission available for BusyBox is
the contingent one granted under the License.

13. Upon information and belief, since at least November 17, 2006,
Verizon has distributed to the public copies of the Firmware in the
Infringing Product, and none of these distributions included source
code to BusyBox or offers to provide such source code.

14. Section 4 of the License states:
You may not copy, modify, sublicense, or distribute the Program
except as expressly provided under this License. Any attempt
otherwise to copy, modify, sublicense or distribute the Program is
void, and will automatically terminate your rights under this
License. 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 In- fringing
Product or Firmware. Since that time, Defendant has had no right to
distribute BusyBox, or a modified version of BusyBox, under any
circumstances or conditions.
*******************************************************************
> I think that the key distinction is *who* put Linux on the 
> router, and that whoever did is the distributor.  Some third 
> party who sells a device with GPL software installed on it isn't 
> necessarily distributing that software.
>
> -Thufir

Sincerely,
Rjack :)