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


From: ZnU
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:58:11 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <address@hidden>,
 RJack <address@hidden> wrote:

> On 8/7/2010 2:13 PM, ZnU wrote:
> > In article<address@hidden>, Alexander
> > Terekhov<address@hidden>  wrote:
> >
> >> ZnU wrote: [...]
> >>> indeed be copyright violation. He simply cited a case with little
> >>> similarity to a hypothetical GPL case, in which conditions were
> >>> not properly established.
> >>
> >> You seem to confuse conditions to the grant of rights and
> >> covenants in consideration of the rights granted.
> >>
> >> "While a party that owns copyright rights is ordinarily entitled to
> >> pursue infringement claims against any third party who violates
> >> them, the courts have recognized that the rights and remedies
> >> available to copyright holders change significantly when the owner
> >> elects to give others a nonexclusive license to use such property.
> >> In that situation, the owner/user relationship is fundamentally
> >> different. Absent a license, the rights of the copyright holder
> >> are governed by statutory and common law rules applicable to such
> >> rights. With a license, however, the terms and covenants of the
> >> license establish the applicable rules. See Effects Associates,
> >> Inc. v. Cohen, 908 F.2d 555, 559 (9th Cir. 1990) (in granting a
> >> copyright license, the licensor gives up its right to sue the
> >> licensee for infringement).
> >>
> >> Recognizing that the existence of consensual licensing arrangements
> >> significantly changes the applicable rules and the expectations of
> >> the parties, federal courts have held that a party cannot normally
> >> pursue a copyright infringement action based upon the licensees
> >> breach of covenants in the license agreement. As a general rule, "
> >> if the [licensees] improper conduct constitutes a breach of a
> >> covenant undertaken by the licensee . . . and if such covenant
> >> constitutes an enforceable contractual obligation, then the
> >> licensor will have the cause of action for contract," not for
> >> copyright infringement. Graham v. James , 144 F.3d 229, 236-37 (2d
> >> Cir. 1998) quoting 3 Melville B. Nimmer&  David Nimmer, Nimmer on
> >> Copyright, 10.15[A] at 10-120 (1998); see also Kolbe v. Trudel ,
> >> 945 F. Supp. 1268, 1270-71 (D. Ariz. 1996). As the Ninth Circuit
> >> explained in Topolos v. Caldewey, 698 F.2d 991, 993 (9th Cir.
> >> 1983):
> >>
> >> [A] case does not arise under the federal copyright laws . . .
> >> merely because the subject matter of the action involves or
> >> affects a copyright. "
> >>
> >> In Jacobsen, the CAFC 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 ³provided² may or may
> >> not indicate a condition, noting that ³Œthere is no magic in the
> >> term [³provided²], 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.¹² 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 ³provided, that² was not
> >> a condition)).
> >>
> >> ³It 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: ŒBut the words, ³upon the express
> >> condition,² as here used, or the words ³if it shall so happen² or
> >> ³provided however² 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.¹ (2 Washburn on Real Property, 4.)
> >>
> >> ³In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared
> >> that ŒThe 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.¹
> >>
> >> ³Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6,
> >> 1 L. R. A. 380], it is said: ŒWhile the words ³provided
> >> nevertheless² and ³upon the following conditions² 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.¹
> >>
> >> ³Indeed, the decisions are uniform to the point that, while
> >> ordinarily the word Œprovided¹ indicates that a condition follows,
> >> as expressed in Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac.
> >> 472], Œthere 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.¹
> >>
> >> 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.
> >
> > You seem to be trying very hard to raise doubt about Jacobsen v.
> > Katzer, the case that touches on this issue most closely. But you're
> > offering nothing particularly strong to favor the opposite position.
> > You've demonstrated that it's possible to fail to create a
> > condition, but have advanced no compelling argument that the GPL,
> > specifically, fails to do so.
> 
> You seem to be trying very hard to claim the GPL creates a condition
> precedent. Perhaps *you* should demonstrate where the GPL *does*
> establish the criteria for forming a condition precedent.
> 
> Why should I believe that the GPL forms a condition precedent when
> no one have ever demonstrated that it does so?

Because a court found that the Artistic License did, and the language 
and mechanism through which the GPL grants permission to redistribute is 
similar.

-- 
"The game of professional investment is intolerably boring and over-exacting to
anyone who is entirely exempt from the gambling instinct; whilst he who has it
must pay to this propensity the appropriate toll." -- John Maynard Keynes


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