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Re: CAFC took JMRI case under advisement

From: Alexander Terekhov
Subject: Re: CAFC took JMRI case under advisement
Date: Fri, 04 Jul 2008 18:52:32 +0200

rjack wrote:
> Hyman Rosen wrote:
> > rjack wrote:
> >> Eben Moglen is asking the Court of Appeals for the Federal Circuit
> >  > to overturn the clear and unequivocal language of the Supreme Court
> >  > in De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236,
> >  > United States Supreme Court (1927):
> >>
> >>     "Whether this [act] constitutes a gratuitous license, or one
> >  >      for a reasonable compensation, must, of course, depend upon
> >  >      the circumstances; but the relation between the parties
> >  >      thereafter in respect of any suit brought must be held to be
> >  >      contractual, and not an unlawful invasion of the rights of
> >>      the owner."
> >
> > Here's the decision: <>.
> > First of all, the case was about a patent, not a copyright. Second,
> > the decision also says
> >
> >     'Concede that, if the owner had said, "If you go on and infringe
> >      my patent, I shall not attempt to enjoin you, but I shall
> >      subsequently sue you for infringement," the tort would not be
> >      waived;'
> >
> > and that is similar to language contained in the GPL.
> How 'bout this discussion:
> "However, implicit in a nonexclusive license is the promise not to sue for
> copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir. 
> 1996),
> citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236, 242 
> (1927)
> (finding that a nonexclusive license is, in essence, a mere waiver of the 
> right
> to sue the licensee for infringement); see also Effects Associates, Inc. v.
> Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting of a
> nonexclusive license may be oral or by conduct and a such a license creates a
> waiver of the right to sue in copyright, but not the right to sue for breach 
> of
> contract)." Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)

Hey Hyman,

To repeat: suppose that a copyright license contract of mine clearly
states that 

*Before* you make use of my exclusive right(s) you must tell the world
that I am "Alexander The Great and Powerful."

That is a license condition (violation of which I may recover in

Condition precedent

A contractual condition that suspends the coming into effect of a
contract unless or until a certain event takes place. 

Consider also the following:

"Conditions precedent are disfavored and will not be read into a
contract unless required by plain, unambiguous language." Effects
Associates, 908 F.2d at 559 n. 7. On July 2, 1993


(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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