Re: CAFC 2008-1001 -- "license to the world must be a bare license" case

[rjack]

Alexander Terekhov wrote:
> ROFL!

The authors of the Amicus Brief are repackaging the old Eben
Moglen theory "a license is not a contract" when they
complain about the District Court ruling:

"It reasoned that "the scope of the [Artistic License] is .
. . intentionally broad" and from this concluded that
"[t]he condition that the user insert a prominent notice of
attribution does not limit the scope of the license."
(A11). The District Court reached this conclusion by
misreading both the applicable case law and the Artistic
License."

SURPRISE !!!!! Curiously, the Amicus authors cite to the very 
Federal Circuit case that dooms their arguments. In Storage 
Technology Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 
F.3d 1307 (Fed. Cir. 2005) the Court clearly stated:

"In light of their facts, those cases thus stand for the
entirely unremarkable principle that "uses" that violate a
license agreement constitute copyright infringement only
when those uses would infringe in the absence of any
license agreement at all."; Storage Technology (supra).

There is no exclusive right enumerated in 17 USC sec. 106
involving "notice of attribution". Only the
following exclusive rights are stated:

(1) to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the copyrighted
work;
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and
other audiovisual works, to perform the copyrighted work
publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work publicly; and
(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.

Hence even in the complete *absence* of a license, no
copyright infringement is possible concerning attribution.

Sincerely,
Rjack :)

--- Whether this [act] constitutes a gratuitous license, or one 
for a reasonable compensation, must, of course, depend upon the 
circumstances; but the relation between the parties thereafter in 
respect of any suit brought must be held to be contractual, and 
not an unlawful invasion of the rights of the owner."; De Forest 
Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, United
States Supreme Court (1927) ---