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Re: IBM's appellee brief in Wallace case

From: Alexander Terekhov
Subject: Re: IBM's appellee brief in Wallace case
Date: Mon, 24 Jul 2006 13:45:49 +0200

Rui Miguel Silva Seabra wrote:
> So either you're misquoting, or Nimmer's

It's neither. It's just your stupidity. Failure to perform according 
to the covenants stated in the GPL is not a copyright infringement. It 
is a contract breach, idiot.

"We think that the payment of royalties and the inclusion of a notice 
crediting James's authorship are to be considered covenants, not 
conditions. The construction of the licensing agreement is governed 
by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 
150, 153 (2d Cir. 1968). Generally speaking, New York respects a 
presumption that terms of a contract are covenants rather than 
conditions ... 'The law favors covenants, rather than conditions 
precedent.'), aff'd , 193 N.Y. 661 (1908)." Graham id.

The GPL contains no conditions precendent. At least under New York law.

Here the word "conditions" is historical and refers generally to 
"conditions precedent"... some condition that must be satisfied 
*before* a grant of rights is effective. Failure to meet a "condition 
precedent" stated in a contract gives rise to an infringement 
violation under section 504 because you never got permission in the 
first place. Conditions precedent are disfavored in the law:

"Nor can we construe payment in full as a condition precedent to 
implying a license. Conditions precedent are disfavored and will not 
be read into a contract unless required by plain, unambiguous 
language." Sulmeyer v. United States (In re Bubble Up Delaware, Inc.), 
684 F.2d 1259, 1264 (9th Cir.1982)


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