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Re: the GPL is a license not a contract ..

From: Rjack
Subject: Re: the GPL is a license not a contract ..
Date: Wed, 11 Mar 2009 07:49:22 -0400
User-agent: Thunderbird (Windows/20081209)

Hyman Rosen wrote:
Rjack wrote:
For the past seventy years no federal court has ever ruled a copyright license to be anything other than a contract.

And we see from this case <>

that even when there indisputably is a contract, violation of the
 contract justifies claims of copyright infringement.

So what is your point?

A copyright license may contain covenants, conditions, conditions
precedent, and scope-of-use provisions. A court examines a copyright
license under state contract law as well applicable federal
copyright law.

The fact that a copyright license is a contract means that privity
requirements as well as 17 USC sec 301(a) apply. Because copyright
license are often not clearly written, all kinds of controversies
result. One of the thorniest issues is confusion between language
used concerning "conditions precedent" and "scope-of-use"
restrictions. Both concepts are commonly referred to as simply
"conditions" which causes much, much confusion.

Many lawyers, including judges, confuse these terms and use themj
interchangeably. A scope-of-use restriction is descriptive language
restricting how an exclusive right can be used. A scope-of-use
restriction is not a term of contract contruction, it is an "in rem"
restriction that attaches to personal property. Exceed the scope
(field) of use restrictions and it is copyright infringement
regardless of contract provisions.

"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."

In contrast, "conditions precedent" (as well as "covenants") are
terms of art in contract construction.

Condition Defined: 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."

Eben Moglen's greatest error concerning the GPL is his confusion
concerning the terms "conditions precedent" and "scope-of-use".

Rjack :)

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