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Latin they'll be screaming.

From: Rjack
Subject: Latin they'll be screaming.
Date: Mon, 18 Aug 2008 19:12:57 -0400
User-agent: Thunderbird (Windows/20080708)

FOSS enthusiasts have won a Pyrrhic victory in Jacobsen v.
Katzer. Pyrrhic because a "condition" is a term of art in
contract interpretation. We now know that all copyright license
containing "conditions" including the Artistic license are
interpreted under the state's common law of contracts. When a
license condition is not met the license remains a contract:

"('[A] condition precedent is a condition precedent to
performance under the contract, not formation of the contract.
When a condition precedent is not satisfied, it relieves a party
to the contract of the obligation to perform. It does not negate
the existence of the contract or the binding contractual
relationship of the parties.'); Wells Fargo Bank, N.A., v. The
United States; 88 F.3d 1012 (CAFC 1996).

We shall soon see a lesson in the Latin language. There are two
terms FOSS advocates will be screaming (in pain): "in personam"
and "in rem":

"A right in personam means a right available against
a determinate individual or determinate individuals. All
contractual rights, as well as some others, fall thereunder. A
right in rem means a right available against persons generally,
or, as frequently expressed, against the world at large. All the
rights that come within the branch of law designated Torts fall
within this category."; Modern American Law (Law of Torts)

So. . . in personam rights created by contract bind the private
parties to the contract (parties in privity). In rem rights bind
third parties and are a "right against the world".

Contractual waiver of exclusive copyrights in contracts is
perfectly legal, since contracts bind only their parties and thus
create rights 'in personam'. When you condition your waiver of
exclusive copyrights such that a waiver to third parties to the
contract (i.e. the 'general public') is required you are
attempting to create rights "in rem" -- rights against the world.
This demand offends 17 USC 301(a) establishing preemption.

The celebrated decision ProCD v. Zeidenberg, 86 F.3d 1447 (7th
Cir. 1996) makes this point crystal clear:

"A copyright is a right against the world. Contracts, by
contrast, generally affect only their parties; strangers may do
as they please, so contracts do not create "exclusive rights. . .
Like the Supreme Court in Wolens, we think it prudent to refrain
from adopting a rule that anything with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. . .  But whether a
particular license is generous or restrictive, a simple two-party
contract is not "equivalent to any of the exclusive rights within
the general scope of copyright" and therefore may be enforced."

Most open source license are not simple two-party contracts.
FOSS advocates are going to learn to hate Latin.

Rjack :)

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