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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Alexander Terekhov
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Wed, 25 Feb 2009 16:29:04 +0100

Rahul Dhesi wrote:
> Rjack <> presents another irrelevant citation:
> >"Generally speaking, New York respects a presumption that terms of a
> >contract are covenants rather than conditions....
> The GPL is very clear that its conditions are conditions.  From version 2,
> and note the parts that I have capitalized:

Those are "conditions" as in what, Rahul?

1. Conditions precedent.  A condition precedent is one that must occur
in order to create an absolute duty of performance.
2. Conditions concurrent. Conditions concurrent are mutually dependant
performances capable of nearly simultaneous execution. The contract bind
the parties to render performance at the same time, such as in an
ordinary sales contract, in which payment and delivery are conditions
concurrent; the conditions of payment must occur before the duty to
delivery arises and, the conduction of delivery must occur before the
duty of payment arises.

Legal effect: the legal effect of a conduction concurrent is much the
same as a conduction precedent. If the conditions occurs the other
party’s duty to perform arises; if it does not occur the duty to perform
does not arise.

3. Conditions Subsequent. A conditions subsequent is one in which the
occurrence of the conduction extinguishes a previously absolute duty to
perform; An emplacement contract in which A agrees to work for B for a
specified period of time unless A is called military service. 

Legal effect: Occurrence of the conduction subsequent extinguishes the
other party’s absolute duty to perform.
True conditions subsequent vs. conditions subsequent in form only: The
previous example is a true conduction subsequent. These are rear and
generally frowned upon by the courts. Provisions that are worded as
conditions subsequent but are really conditions precedent in effect must
be distinguished. For example, I insures P against loss by fire and the
policy is discharged if either (i) proof of loss is not submitted within
30 days after the accident, or (ii) suit in not brought against insurer
for the claimed loss within 12 months from the date of the accident.

Submitting notice and proof of loss within 30 days is really a
conduction precedent to the insurer’s duty to pay. 

But failure to sue within the 12 month period is a true condition
subsequent, which extinguishes the company’s duty to perform, (payment.)

>   Any attempt otherwise to [do other things] will AUTOMATICALLY
>   TERMINATE your rights under this License.
>   If... conditions are imposed on you...that contradict the CONDITIONS
>   of this License, they do not excuse you from the CONDITIONS of this
>   License.

The licensee's obligations stated in the GPL are all covenants and not

     How many legs does a dog have if you call the tail a leg? 
     Four.  Calling a tail a leg doesn't make it a leg.

                                               Abraham Lincoln 


(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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