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Re: More FSF hypocrisy


From: Rjack
Subject: Re: More FSF hypocrisy
Date: Fri, 27 Mar 2009 14:15:31 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

Rahul Dhesi wrote:
Rjack <address@hidden> writes:

Alexander is trying to explain to you that a requirement
qualifies as a condition precedent to a copyright grant if and
only if the requirement *must* occur *before* the grant of
rights becomes effective (contract performance). Obviously, the
requirement cannot depend on the grant of rights it claims to
condition.

I don't see the problem. While the CAFC interpreted the Artistic
License as imposing a scope of use, I don't see why it or the GPL
could not also impose a condition precedent. Before you satisfy
the redistribution conditions in the GPL for a specific copy that
you have made, you are not authorized to distribute that copy,
although you were authorized to make the copy and keep and use it
privately.


GPL section 2(b) says:

"You must cause any work that you distribute or publish, that in
whole or in part contains or is derived from the Program or any part
thereof, to be licensed as a whole at no charge to all third parties
under the terms of this License."

Rahul, do you really believe that you can "cause" source code "to to
be licensed as a whole at no charge to all third parties under the
terms of this License" *before* you ever distribute a copy of the
source code to be licensed to those third parties?


If this still bothers you, consider the condition as a condition concurrent and not a condition precedent. Look it up.

Looking up a condition concurrent won't make it a condition
precedent any more than looking up the definition of a cat will
turn it into a dog. That's simply mooooooooooooooving the goalpost.

Concurrent Conditions
Conditions that require a *simultaneous* performance by the parties.

Conditions Precedent
Requires the happening of an event *before* a party is obligated to
perform. Failure of the event to occur will mean that performance
will not be required

The whole idea of a condition precedent is that something must
occur *BEFORE* something else occurs:

"This is not a case where payment of JMI's costs and public
recognition of authorship were made conditions precedent to the
granted right to play. See Restatement (Second) of Contracts § 225
(1981). In such a case, absent performance of the conditions, the
"license" would not have issued and the Miracle's public
performances of the song would have violated JMI's copyright. See
Fantastic Fakes, 661 F.2d at 483; 3 M. Nimmer & D. Nimmer, Nimmer
on Copyright § 10.15[A], at 10-121 (1996).
But Albion did not make payment and recognition conditions
precedent to the permission he gave to play the song. "A condition
is an event, not certain to occur, which must occur, unless its
non-occurrence is excused, before performance under a contract
becomes due." Restatement (Second) of Contracts § 224 (1981).
"Conditions precedent are disfavored and will not be read into a
contract unless required by plain, unambiguous language." Effects
Associates, 908 F.2d at 559 n. 7."; Jacob Maxwell, Inc. v. Veeck,
110 F.3d 749 (11th Cir. 1997).





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