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Re: PJ of Groklaw tells a story... (celebrating CAFC's utter nonsense ru

From: Rjack
Subject: Re: PJ of Groklaw tells a story... (celebrating CAFC's utter nonsense ruling)
Date: Fri, 15 Aug 2008 13:34:44 -0400
User-agent: Thunderbird (Windows/20080708)

Alexander Terekhov wrote:
(Court of Appeals for Federal Circuit Overturns Jacobsen v. Katzer - Ruling as text)

When the Federal Circuit held:

"Under California contract law, Aprovided 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 Ainteresting and
ingenious@ argument for interpreting this language as creating a mere
covenant rather than a condition; and holding that this argument Acannot
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@) (emphases added)."

PJ's eye's filmed over (bad cold?) when the Court interpreted the
Artistic License "Under California contract law. . .".

The Restatement (Second) of Contracts § 224 (1981) defines a condition
as "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."]

PJ's eyes again filmed over at the phrase ". . . before performance
under a contract becomes due".


"Contract conditions precedent generally are of two kinds. The first
involves issues of offer and acceptance which precede and determine the
formation of a contract.  The second arises from the terms of a valid
contract and defines an event which must occur before a right or
obligation matures under the contract.(citations omitted) See also
Corbin, Contracts § 628 (1960 & Supp. 1999); 5 Williston, Contracts §
666A (3d ed. 1961 & Supp. 1999); Restatement(Second) of Contracts § 224
(1981). In contrast "[a] condition subsequent is a condition which
relieves a party of the obligation of further performance" under a valid
contract. Wood v. Roy Lapidus, Inc., 10 Mass.App. Ct. at 764 n.6."
CORPORATION;(Maine Supreme Court No. 97-P-1896, 1999)

PJ and her crackpot buddy Eben Moglen have (and will) forever deny that
a copyright license is a contract.

"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995)

"Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006)

There is a powerful motivation on PJ and Moglen's part. If a license is
not a *contract*, then 17 USC sec. 301's preemption provisions would not

"301. Preemption with respect to other laws.
(a) On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of
copyright as specified by section 106 in works of authorship that are
fixed in a tangible medium of expression and come within the subject
matter of copyright as specified by sections 102 and 103, whether
created before or after that date and whether published or unpublished,
are governed exclusively by this title. Thereafter, no person is
entitled to any such right or equivalent right in any such work under
the common law or statutes of any State."

The sentence "Thereafter, no person is entitled to any such right or
equivalent right in any such work under the common law or statutes of
any State" would not apply since *contracts* are interpreted under the
common law of the States.

Sorry PJ.



-- "[I]f an extra element is required instead of or in addition to the
acts of reproduction, performance, distribution or display in order t o
constitute a state-created cause of action, there is no preemption,
provided that the extra element changes the nature of the action so that
it is qualitatively different from a copyright infringement claim."
Stromback v. New Line Cinema, 384 F.3d 283 (United States Court Of
Appeals for the Sixth Circuit 2004) --

a cont

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