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Re: CAFC took JMRI case under advisement

From: Alexander Terekhov
Subject: Re: CAFC took JMRI case under advisement
Date: Mon, 07 Jul 2008 09:46:03 +0200

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > Consider also the following:
> >
> I just did. Did you? Everything about that case acts in support
> of the provisions of the GPL, not against it.
>      "Albion's approving conduct--his granting of permission to
>       the Miracle on July 2, 1993 to play his song at the next
>       day's game even though he had not yet been paid, his
>       attendance without demur at subsequent games at which the
>       song was played, his letter to Kuhn urging the Miracle to
>       continue to play the song at games, and his failure to
>       withdraw permission until October--clearly expressed
>       Albion's permission for the Miracle to play the song when
>       it did.
> In other words, if you notice problems and take no action, and
> even encourage further use, the court isn't going to believe that
> the use was without permission. That's why the GPL clearly states
> what you are permitted to do, what you are not permitted to do,

Why did you not quote the following subsequent text?

"Implicit in that permission was a promise not to sue for copyright
infringement--a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d 673,
677 (9th Cir.1996) ("[A] nonexclusive patent license is, in essence, 'a
mere waiver of the right to sue' the licensee for infringement.")
(quoting De Forest Radio Telephone & Telegraph Co. v. United States, 273
U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625 (1927)). We think it
follows that until permission was withdrawn in October, JMI granted to
the Miracle a nonexclusive license to play the song at games.

In so saying, we do not suggest that Albion and JMI waived their rights
to be compensated by the Miracle in accordance with their oral
understanding. What they waived was any right to sue for breach of
copyright on account of the playing of the song while the license was in
effect. As discussed in the following section, the Miracle's failure to
provide the agreed quid pro quo could not, on the facts of this case,
invalidate the legal effect of Albion's permission to play."

> and that you immediately lose distribution rights if you do not
> conform to the conditions of the license.

You just can't "lose" any licensed rights if you do not conform to the
conditions PRECEDENT to the license contract. That's because a condition
precedent is a contractual condition that suspends the coming into
effect of a contract (conveying the rights) unless or until certain
events takes place. You can't "lose" a right that *wasn't* conveyed to

Anyway, I think you would agree that even if a court theoretically
determined that my license to, say, a copy of Vista was in fact
terminated, I could go to Best Buy or CompUSA and buy another copy. The
fact that my license to one copy is terminated would not render invalid
my license to all subsequent copies that I lawfully acquire. What is the
basis for arguing that the situation is any different with respect to
"free" software?

If the license contract is terminated, what would prohibit the former
licensee from lawfully acquire another license to the software? Where in
the GPL does it say that past infringers are prohibited from obtaining a
license? The answer is nowhere.

> > "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
> Yes, exactly what the GPL contains. 

The GPL doesn't contain any conditions precedent. All obligations stated
in the GPL a contractual covenants and not conditions precedent.


(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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