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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Wed, 25 Mar 2009 16:59:46 +0100

Rjack wrote:
> Hyman Rosen wrote:
> > Alexander Terekhov wrote:
> >> FOSS licenses have neither scope-of-use limitations nor any
> >> conditions precedent to the grant of rights. Hence FOSS
> >> licensors "can sue only for breach of contract".
> >
> > False, of course.
> > <> The Artistic
> > License states on its face that the document creates conditions:
> > "The intent of this document is to state the conditions under
> > which a Package may be copied." (Emphasis added.) The Artistic
> > License also uses the traditional language of conditions by
> > noting that the rights to copy, modify, and distribute are
> > granted "provided that" the conditions are met.
> > Under California contract law, "provided that" typically denotes
> > a condition.
> I agree that typically "provided that" may denote a contractual
> condition. So what?
> For a contractual "condition" to be relevant to an infringement
> claim it must constitute a "condition precedent" to the grant of
> rights in the contract. If a valid condition precedent is not
> satisfied then no license exists and infringement occurs.
> Sigh. . .
> The CAFC never mentioned that the word "condition" has two different
> meanings in a license context. 

The CAFC has a long history of blunders regarding "conditions" and
erroneously applying tort instead of contract law.

In the patent context (note that the patent laws do recognize exclusive
right to "use" and the doctrine of exhaustin is judicial and not
statutory akin to 17 USC 109 and 17 USC 117 in the copyright context)
the United States Department of Justice nicely explained in Quanta
Computer, Inc., et al., v. LG Electronics, Inc. amicus brief to the
Supreme Court of the United States:

As the decisions in Mallinckrodt and this case indicate, the Federal
Circuit understands this Court's first-sale decisions as drawing a
distinction between "unconditional" and "conditional" sales, with the
latter category encompassing any sales subject to restrictions on the
right to use or to resell the purchased article. Pet. App. 4a-6a;
Mallinckrodt, 976 F.2d at 706-708. As a result, under the Federal
Circuit's cases, a patentee may attach restrictions on products
embodying its patented invention and enforce those restrictions, in
actions for patent infringement, against downstream purchasers even
after an authorized sale by the patentee or a licensee (as long as the
restrictions are not anticompetitive ones, such as price fixing and

The Federal Circuit's broad understanding of "conditional" sale is not
reflected in this Court's cases. This Court did allude to the notion of
an "unconditional" sale in Mitchell, which observed that the patent
right is exhausted when the patentee "has himself constructed a machine
and sold it without any conditions, or authorized another to construct,
sell, and deliver it *  *  * without any conditions." 83 U.S. (16 Wall.)
at 547; see Keeler, 157 U.S. at 663 (quoting the foregoing passage in
describing the Mitchell decision). But at that time, a "conditional"
sale would have been understood as an agreement to sell where title
would not convey until performance of a condition precedent. See, e.g.,
Harkness v. Russell, 118 U.S. 663, 666 (1886) (describing a "conditional
sale" as a "mere agreement to sell upon a condition to be performed" in
which title does not pass until the condition precedent is performed). 

That narrower understanding of a "conditional" sale is consistent with
this Court's other patent-exhaustion cases, which explain that the
doctrine is triggered "if a person legally acquires a title to" a
patented item (Chaffee v. Boston Belting Co., 63 U.S. (22 How.) 217, 223
(1859); when a patented item is "lawfully made and sold" (Adams, 84 U.S.
(17 Wall.) at 457; Hobbie, 149 U.S. at 363) or "passes to the hands of
the purchaser" (McQuewan, 55 U.S. (14 How.) at 549); or upon "the
purchase of the article from one authorized by the patentee to sell it"
(Keeler, 157 U.S. at 666). See Univis Lens, 316 U.S. at 249-251
("authorized sale" triggered patent- exhaustion doctrine notwithstanding
license agreement limiting resale prices); Motion Picture Patents, 243
U.S. at 515-516 (describing as an "unconditional sale" a sale made
subject to restrictions on resale price). That understanding is also
reflected in the Court's frequent suggestion that whether a patentee can
place enforceable downstream restrictions following an authorized sale
turns on contract, not patent, law. See, e.g., Keeler, 157 U.S. at 666;
McQuewan, 55 U.S. (14 How.) at 549-550.


(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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