Re: Copyright Misuse Doctrine in Apple v. Psystar

[Alexander Terekhov]

Rahul Dhesi wrote:
[...]
> didn't see, how that applies to a clear written license that repeatedly
> says "provided that".

http://web.lexis-nexis.com/research/retrieve?_m=9d061ea7856d1e028cc0a06fdcdecfb5&docnum=1&_fmtstr=FULL&_startdoc=1&wchp=dGLzVtz-zSkAb&_md5=c4b44e6c4c2abb82fad4247554a9f7fa

"It is undoubtedly true, as claimed by appellant, that stipulations in a
contract are not construed as conditions precedent unless that
construction is made necessary by the terms of the contract. ( Deacon v.
Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140 Cal.
318, [73 Pac. 966].) There are also well considered cases holding that
provided does not necessarily impose a condition. In Hartung v. Witte,
59 Wis. 285, [18 N. W. 177], it is said: 'But the words, "upon the
express condition," as here used, or the words "if it shall so happen"
or "provided however" and the like do not always make a condition, and
it is often a nice question to determine whether it is a condition or a
covenant and courts always construe similar clauses in a deed as
covenants rather than as conditions, if they can reasonably do so.' (2
Washburn on Real Property, 4.) 

"In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
'The word provided though an appropriate word to constitute a common law
condition does not invariably and of necessity do so. On the contrary,
it may give way to the intent of the party as gathered from an
examination of the whole instrument, and be taken as expressing a
limitation in trust.' 

"Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
R. A. 380], it is said: 'While the words "provided nevertheless" and
"upon the following conditions" are appropriate words to create a
condition, they do not of necessity create such an estate. They and
similar words, will give way when the intention of the grantor as
manifested by the whole deed, is otherwise, and they have frequently
been explained and applied as expressing simply a covenant or a
limitation in trust.' 

"Indeed, the decisions are uniform to the point that, while ordinarily
the word 'provided' indicates that a condition follows, as expressed in
Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], 'there is no
magic in the term, and the clause in a contract is to be construed from
the words employed and from the purpose of the parties, gathered from
the whole instrument.' 

regards,
alexander.

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