Re: Contract and Tort Law and the GPL
On 5/12/05, Raul Miller <moth.debian@gmail.com> wrote:
> Just in case anyone was worried about this issue:
>
> On 5/12/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > On 5/11/05, Raul Miller <moth.debian@gmail.com> wrote:
> > > So it should be possible to treat the GPL as if an implicit contract
> > > had been signed, and proceed from there, and the damages inflicted by
> > > GPL violation in such cases could be substantial.
> >
> > Signed, schmigned. It's an offer of contract, duly accepted; there
> > are few contract terms which cannot be found to exist in a court of
> > fact without a signed written agreement, and nothing in the GPL
> > (except perhaps the agency to sublicense which appears to me to be the
> > only legal way to implement Section 6) falls into that category.
>
> quoting http://caselaw.lp.findlaw.com/data2/circs/9th/9915046.html
>
> The parties also disputed whether Sun's suit was properly
> considered as one for copyright infringement, as Sun con-
> tended, or as one for breach of contract, as Microsoft con-
> tended. The district court concluded that the claim was
> properly considered as an infringement action, thereby enti-
> tling Sun to a presumption of irreparable harm.
>
> It looks to me as if at least some courts will make a distinction
> between breach of contract and copyright infringement.
And just in case anyone was fooled by Raul's myopic quotation of an
appeals court's summary of a district court decision that it
overturned:
B. Presumption of Irreparable Harm
Federal copyright law presumes irreparable harm from the
infringement of a copyright. See Cadence Design Systems,
125 F.3d at 826-27. The district court held that this case is a
copyright infringement case and not a contract case and there-
fore presumed irreparable harm. See Sun Microsystems, 21 F.
Supp. 2d at 1125. It is not clear, however, how the district
court reached its decision that this case should be analyzed
under the copyright infringement standard. It stated only that
"Microsoft's argument that . . . Sun does not enjoy a presump-
tion of irreparable harm merely rehashes its argument, which
the court has rejected, that Sun's claims arise out of breach of
contract rather than copyright infringement." Id. We were
unable to determine, and the parties were unable to inform us
at oral argument, where in the record before us the district
court had previously addressed this issue.
[7] Whether this is a copyright or a contract case turns on
whether the compatibility provisions help define the scope of
the license. Generally, a "copyright owner who grants a non-
exclusive license to use his copyrighted material waives his
right to sue the licensee for copyright infringement " and can
sue only for breach of contract. Graham v. James , 144 F.3d
229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa
Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If,
however, a license is limited in scope and the licensee acts
outside the scope, the licensor can bring an action for copy-
right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d
1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
(1999).
...
The injunction is VACATED and the case REMANDED to
the district court for further proceedings.
Cheers,
- Michael
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