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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 15:58:13 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

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

> On 8/8/2010 3:12 AM, ZnU wrote:
> > 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 3‘there 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: ‘But 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 ‘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.1
> >>>>
> >>>> 3Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl.
> >>>> 6, 1 L. R. A. 380], it is said: ‘While 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 ‘provided1 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.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.
> >
> A cow and a dog are *similar* (they're both mammals). Ever try milking a
> dog?
> 
> Please, just show me the condition precedent in the GPl.

>From the ruling:

-------------------------------------------------------------------------
The Artistic License states on its face that the document creates 
conditions: "The intent of this document is to state the conditions 
under which a Package may be copied." The Artistic License also uses the 
traditional language of conditions by noting that the rights to copy, 
modify, and distribute are granted "provided that" the conditions are 
met. Under California contract law, "provided that" typically denotes a 
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911) 
(interpreting a real property lease reciting that when the property was 
sold, "this lease shall cease and be at an end, provided that the party 
of the first part shall then pay [certain compensation] to the party of 
the second part"; considering the appellant's "interesting and 
ingenious" argument for interpreting this language as creating a mere 
covenant rather than a condition; and holding that this argument "cannot 
change the fact that, attributing the usual and ordinary signification 
to the language of the parties, a condition is found in the provision in 
question").
-------------------------------------------------------------------------

The GPL also explicitly sets out conditions, labeled as such, and uses 
the "provided that" language. For instance:

"You may convey a work based on the Program, or the modifications to 
produce it from the Program, in the form of source code under the terms 
of section 4, provided that you also meet all of these conditions: [list 
of conditions]"

In, fact the licenses are _so_ similar in the relevant respects that you 
could literally do a search/replace on "Artistic License" with "GPL" in 
the ruling and, with the exception of a single example given of a 
provision from the Artistic License, everything else the ruling says 
about the license would still be accurate.

Basically, to argue that the Jacobsen v. Katzer reasoning doesn't apply 
to the GPL, you'd need to argue that there was some _additional_ factor 
relevant to the GPL that somehow undermined its use of the same language 
that was held to create a condition precedent in Jacobsen. What might 
that factor be?

-- 
"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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