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Re: First US GPL Lawsuit: What's 'Free' Got to Do With It?
Posted by: Katherine Noyes 2007-09-21 11:48:47
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In what promises to be a precedent-setting case, the Software Freedom Law Center announced Thursday that it has filed the first ever U.S. copyright infringement lawsuit based on a violation of the GNU General Public License. The case was filed on behalf of two principal developers of BusyBox against Monsoon Multimedia. BusyBox is a lightweight set of standard Unix utilities commonly used in embedded systems and is open source software licensed under GPLv2.
Re: First US GPL Lawsuit: What's 'Free' Got to Do With It?
Posted by: gumout 2007-09-21 12:22:55 In reply to: Katherine Noyes
The SFLC is using threats of copyright infringement prosecution under the GPL as a tatical matter to force Monsoon Multimedia to comply with a contractual covenant. The SFLC will never allow a federal court to examine the GPL on its merits.
If the suit goes forward (which I very seriously doubt) the federal district court will dismiss due to failure to state a federal cause of action. Copyright contract rescission claims are properly heard under the common law of state jurisdictions.
Failing to distribute source code is a contract breach and not a violation of a works 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. That is solely a contractual matter.
1.) There is no “automatic” contract rescission under New York common law:
“. . . recession of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in recession 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.) Federal courts will not hear copyright license rescission claims. A contract rescission claim in federal court concerning copyright infringement 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).
". . . once a district court determines that a state law claim has been completely preempted and thereby assumes jurisdiction over it, the court must then dismiss the claim for failing to state a cause of action."; Briarpatch Ltd., LP. V. Phoenix Pictures, Inc., 373 F.3d 296 (2nd Cir. 2004).
If the suit goes forward (which I very seriously doubt) the federal district court will dismiss due to failure to state a federal cause of action. Copyright contract rescission claims are properly heard under the common law of state jurisdictions.
Failing to distribute source code is a contract breach and not a violation of a works 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. That is solely a contractual matter.
1.) There is no “automatic” contract rescission under New York common law:
“. . . recession of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in recession 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.) Federal courts will not hear copyright license rescission claims. A contract rescission claim in federal court concerning copyright infringement 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).
". . . once a district court determines that a state law claim has been completely preempted and thereby assumes jurisdiction over it, the court must then dismiss the claim for failing to state a cause of action."; Briarpatch Ltd., LP. V. Phoenix Pictures, Inc., 373 F.3d 296 (2nd Cir. 2004).
