Re: issues with the AGPL
On Sunday 23 August 2009 6:57:50 am Greg Harris wrote:
> On Sat, 22 Aug 2009 14:17:49 -0700
> Chris Harshman <rch@packetlaw.com> wrote:
>
> > On Sat, 2009-08-22 at 12:43 -0700, Steve Langasek wrote:
> > > On Sat, Aug 22, 2009 at 02:31:38PM +0200, Florian Weimer wrote:
> > >
> > > > > All that is for USA, right? Do you know whether it works that
> > > > > way in other countries than USA, and probably UK, Canada and
> > > > > Australia too?
> > >
> > > > There is no such thing as a unilateral contract in Germany.
> > >
> > > There's no such thing as a unilateral contract anywhere else
> > > either. A license is not a contract.
> >
> > There's an excellent discussion on the finer points of this
> > distinction (albeit under U.S. law) in Jacobsen v. Katzer, 535 F.3d
> > 1373 (Fed. Cir. 2008). I have the opinion if anyone wants to read it
> > (not sure how accessible it is outside a legal research database
> > subscription).
In the interest of warning folks who might stumble upon this thread and look to this case law as controlling in the United States, please note that the court in question is the Federal Circuit. The Federal Circuit has jurisdiction over patent cases (and a number of other issues that the government has decided needs consistency across the nation). It does not have primary jurisdiction over copyright cases and only touches on the subject in the situation where a patent issue is the primary focus and the copyright issue is of secondary concern.
I mention this because the Federal Circuit has a very bad track record when it comes to applying copyright law, and the other circuits seem to avoid citing the Fed Circuits decisions in this area. The problem, ultimately, is you have a bunch of judges who live in the world of "idea protection" and want to apply that same way of thinking to "expression protection", when the two are fundamentally different under US law. Too much stuffing round pegs into square holes.
This is to say nothing of the significant overturn rate of the Fed Circuit on matters of /patent/ law by the Supreme Court, which suggests the Fed Circuit's legal isolation has allowed it to veer far out of the legal mainstream.
Anyway, whatever you glean out of the case law, just remember that if you do end up in a US court over a copyright issue, chances are you going to be in one of the regional circuits where the Fed Circuit. case law on this are is suspect at best.
-Sean
--
Sean Kellogg
e: skellogg@probonogeek.org
w: http://blog.probonogeek.org
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