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Re: GNU licenses

From: Alexander Terekhov
Subject: Re: GNU licenses
Date: Mon, 04 Sep 2006 14:11:58 +0200

"Alfred M. Szmidt" wrote:
>    > Breach of a copyright license is copyright infringement.
>    Doing an act *which is not licensed* is copyright infringement.  If
>    I authorize you to copy my work verbatim, and you change it, you
>    infringe my copyright.
>    Doing a licensed act but failing to comply with conditions is
>    *breach of contract* If I authorize you to copy in return for
>    payment of $1 per copy, and you don't pay, you are in breach of the
>    license.  Yet I can only sue you for non-performance and demand the
>    dollar per copy.
> The act of `not paying $1 per copy' wasn't licensed, so this is
> copyright infringement (even according to your own words).

You really need to illuminate US judiciary on that.

"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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