Statute vs. Contract law
I wonder if this is one of those cases where the interpretation of copyright, which is, I believe (and I am not a lawyer), a statute law, being misinterpreted by the court in order to find a "home" for this type of suit.
My reasoning (and I hope a qualified lawyer corrects me here) is that copyright is defined in the statute laws of countries, territories, etc. as part of the definition of what "belongs" to that legal jurisdiction. I believe that this is the same type of reasoning that is applied to other "licenses" that are granted under statute rather than contract. Case in point: a "driver's license" is granted by a territory to an individual, giving that individual the permission to operate a motor vehicle in the territory.
The "driver's license", like a license granted in copyright, provides specific permissions and restrictions on actions an individual can perform in and with a motor vehicle, although this is codified elsewhere (i.e., in the Motor Vehicle Codes (MVC) of most territories). Thus, as a licensed driver, I can be held in violation of my license if I do any action that is forbidden, not by only by the license itself, but by the MVC of the territory.
To put this in perspective: if I am driving a car at a speed above the posted limit on a road, I am in violation of the MVC, and, by implication, in breach of my driving license. It does not matter if there is no injury to any party in this action (i.e., I am driving down an empty stretch of U.S. highway between Kingman, AZ and Havasu City, AZ at 3am with absolutely no traffic and a full moon): if I am exceeding the posted speed limit and I am observed by law enforcement, I will be stopped and potentially detained - and my license revoked - for this violation. In as much as I have not caused any damage by my driving violation, am I not in the same position as the Jacobsen case? I broke the law, and my license is in jeopardy. (This should be even more familiar to folks in the U.K., as the traffic cameras are doing this by enforcing speed violations, regardless of the circumstances surrounding them, eh?)
This particular case of copyright may be viewing the license from a standpoint of what was conveyed by the license, ignoring the implication of the contract that is inherent in a copyright.
If you open a book, on the copyrights page there are usually a number of citations that declare the copyright, and these are usually followed by the words "all rights reserved". In my understanding, this means that I am prohibited from doing anything that is defined in the copyright as being conveyable by the owner. In the case of, say, a work of fiction, the licenses that may be conveyed are many and very narrow in their grant: I can license one publisher to print the story in a hard-back book, grant another license for the same work to be printed in paper-back, another in "trade" format, another for "graphic novel", another for "serialzed comic", etc., etc. Each of these licenses is a contract, both in fact (I would typically sign a contract with a publisher for remuneration based on granting them a license) and in implication (I am serving notice in the copyright notice that all rights are still subject to my grant of license, and if you publish the work without a contract you are in violation of copyright - even if a license for this particular type of publication has never been granted).
Now, in the Jacobsen case above, I believe that the rights are conveyed as a condition of accepting the license. If you don't want to meet the license, you don't get any rights conveyed and you don't use the code. This is no different than Tom Clancy "shopping" a new novel around to movie studios: if they don't want to meet the conditions of the license ("pay Mr. Clancy a lot of money") they don't get to make the film. If a movie studio went ahead and made a movie based on Mr. Clancy's work without obtaining a license, would they not be in the exact same position as the defendants in this case? The only real difference is that the remedy is money in one case and (essentially) apology in the other.
But the underlying law that is being enforced in BOTH cases is copyright, a STATUTE, not a CONTRACT. And just as not having a driver's license prohibits ANYONE from legally operating a vehicle, doesn't the failure of the defendant to obtain a license (i.e., include the license terms and copyright notice) fall into the same category?
My point here is that, if copyright is a statute law, then violation of it is just like any other statute law. If there is a "contract" involved at all, isn't this the implied contract that surrounds ALL statute law - that failure to abide by the statute is a CRIMINAL action?
Oh, and regardless of the economic merits of this case, isn't this a CRIMINAL violation ANYWAY? At least that's what all those copyright notices embedded in movies tell me.
So, where is the FBI when we REALLY need them?
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Re-reading my post, it has suddenly struck me that the solution might be something as simple as including the wording:
"(C) Copyright {date here} {your name here}
All rights reserved, except those specifically granted under the terms of the (insert GPL license here)."
Really, is this all it would take to close the loop on the GPL? The simple statement that you grant nothing unless the license is accepted? Please someone post a response!