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The JMRI decision makes sense

From: Rjack
Subject: The JMRI decision makes sense
Date: Fri, 15 Aug 2008 22:45:49 -0400
User-agent: Thunderbird (Windows/20080708)

The decision of the Federal Circuit finally makes sense! The
Court stated:

"Thus, if the terms of the Artistic License allegedly violated
are both covenants and conditions, they may serve to limit the
scope of the license and are governed by copyright law. If they
are merely covenants, by contrast, they are governed by contract
law. See Graham, 144 F.3d at 236-37 (whether breach of license is
actionable as copyright infringement or breach of contract turns
on whether provision breached is condition of the license, or
mere covenant); Sun Microsystems, 188 F.3d at 1121 (following
Graham; independent covenant does not limit scope of copyright
license). The District Court did not expressly state whether the
limitations in the Artistic License are independent covenants or,
rather, conditions to the scope; its analysis, however, clearly
treated the license limitations as contractual covenants rather
than conditions of the copyright license."

The Court of Appeals for the Federal Circuit is using the term
"conditions to the scope" when referring to the effect caused
by a "condition precedent" or "condition subsequent" on the
contractual performance of a "GRANT OF RIGHTS".

The "conditions to the scope" the Court is referring to are
*contractual terms*. The confusion caused by the Federal
Circuit's use of the word "scope" in a context different from a
"field (scope) of use" limitation is causing the great uproar
over "license conditions".

Eben Moglen and PJ believe the term "scope" as used by the Court
has the effect of a "field (scope) of use" limitation. That is
*not* the meaning contemplated by the Federal Circuit's language.

Unless and until Eben Moglen and PJ understand the difference
between the effect of a "field (scope) of use" limitation and
the effect of a contractual "condition to the scope" they
will go on wildly claiming that a "license is not a contract".

The Federal Circuit absolutely understands that a license *is* a

"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)


-- FIELD OF USE RESTRICTION [general intellectual property-antitrust].
A provision in an intellectual property license restricting the licensee
to use of the licensed property only in a defined product or service
market. --

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