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Re: Psystar's legal reply brief in response to Apple


From: Alexander Terekhov
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:58:04 -0000

ZnU wrote:
> 
> In article <address@hidden>,
>  RJack <address@hidden> wrote:
> 
> > On 8/5/2010 3:34 PM, Hyman Rosen wrote:
> > > On 8/5/2010 3:11 PM, Alexander Terekhov wrote:
> > >> Hyman Rosen is spin doctoring CAFC's Jacobsen opinion
> > >
> > > The court ruled that the copyright conditions found in a specific
> > > open license were indeed copyright conditions such that copying
> > > without honoring them is copyright violation.
> >
> > And the Artistic License is not the GPL license. This is cognitively
> > unacceptable to GPL crackpots on who have built their identity on
> > asserting false legal claims concerning the GPL license.
> 
> In what way are they different such that the Artistic License creates
> copyright conditions but the GPL does not?

In Jacobsen, CAFC appears to be thoroughly confused regarding the 
concepts of conditions, license scope limitations, and consideration 
in the form of compliance with licensee's obligations.

To understand the concept of "conditions" see

http://law.scu.edu/FacWebPage/Neustadter/contractsebook/main/commentary/Promises%20and%20condtions.html

Also note CAFC's reliance on Diepenbrock v. Luiz:

"Under California contract law, “provided that” typically denotes a 
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)"

The CAFC further ruled: 

"The choice to exact consideration in the form of compliance with the
open source requirements of disclosure and explanation of changes..." 

How on earth can "disclosure and explanation of changes" come before 
(be a condition precedent) to the license grant? 

As discussed by The Supreme Court of California in Diepenbrock v. Luiz,
115 P. 743, 744 (Cal. 1911), the term “provided” may or may not indicate
a condition, noting that “‘there is no magic in the term [“provided”],
and the clause in a contract is to be construed from the words employed
and from the purpose of the parties, gathered from the whole
instrument.’” Diepenbrock v. Luiz, 115 P. 743, 744 (Cal. 1911) (quoting
Boston Safe Dep. and Trust Co. v. Thomas, 53 P. 472 (Kan. 1898) (finding
that, based on a reading of an entire provision, a clause containing
“provided, that” was not a condition)). 

“It is undoubtedly true, as claimed by appellant, that stipulations in a
contract are not construed as conditions precedent unless that
construction is made necessary by the terms of the contract. ( Deacon v.
Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140 Cal.
318, [73 Pac. 966].) There are also well considered cases holding that
provided does not necessarily impose a condition. In Hartung v. Witte,
59 Wis. 285, [18 N. W. 177], it is said: ‘But the words, “upon the
express condition,” as here used, or the words “if it shall so happen”
or “provided however” and the like do not always make a condition, and
it is often a nice question to determine whether it is a condition or a
covenant and courts always construe similar clauses in a deed as
covenants rather than as conditions, if they can reasonably do so.’ (2
Washburn on Real Property, 4.) 

“In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
‘The word provided though an appropriate word to constitute a common law
condition does not invariably and of necessity do so. On the contrary,
it may give way to the intent of the party as gathered from an
examination of the whole instrument, and be taken as expressing a
limitation in trust.’ 

“Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
R. A. 380], it is said: ‘While the words “provided nevertheless” and
“upon the following conditions” are appropriate words to create a
condition, they do not of necessity create such an estate. They and
similar words, will give way when the intention of the grantor as
manifested by the whole deed, is otherwise, and they have frequently
been explained and applied as expressing simply a covenant or a
limitation in trust.’ 

“Indeed, the decisions are uniform to the point that, while ordinarily
the word ‘provided’ indicates that a condition follows, as expressed in
Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], ‘there is no
magic in the term, and the clause in a contract is to be construed from
the words employed and from the purpose of the parties, gathered from
the whole instrument.’ 

The Restatement (Second) of Contracts Article 224 states:

"Condition Defined:

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."

Obviously an "event" that depends on performance of a contract cannot
occur *before* performance of the contract becomes due. This result is
called an impossible condition in contract construction and is strictly
construed *against* the drafter.

The ruling of the CAFC reminds me of this limerick ridiculing the 
theory of special relativity:

There was a young lady named Bright,
Whose speed was far faster than light.
She went out one day,
In a relative way
And returned the previous night!

– Arthur Reginald Buller

regards,
alexander.

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)


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