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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Fri, 27 Mar 2009 20:40:31 +0100

Rjack wrote:
> "This is not a case where payment of JMI's costs and public
> recognition of authorship were made conditions precedent to the
> granted right to play. See Restatement (Second) of Contracts § 225
> (1981). In such a case, absent performance of the conditions, the
> "license" would not have issued and the Miracle's public
> performances of the song would have violated JMI's copyright. See
> Fantastic Fakes, 661 F.2d at 483; 3 M. Nimmer & D. Nimmer, Nimmer
> on Copyright § 10.15[A], at 10-121 (1996).
> But Albion did not make payment and recognition conditions
> precedent to the permission he gave to play the song. "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." Restatement (Second) of Contracts § 224 (1981).
> "Conditions precedent are disfavored and will not be read into a
> contract unless required by plain, unambiguous language." Effects
> Associates, 908 F.2d at 559 n. 7."; Jacob Maxwell, Inc. v. Veeck,
> 110 F.3d 749 (11th Cir. 1997).

Consider a copyright license that says:

(Bryan is Licensor and Stevie is Licensee)

    Stevie may copy, make derivative works, and distribute those 
    works that are based on the covered source code provided that 
    the following condition concurrent is fulfilled:

    Bryan will give Stevie $1000 for the Stevie's gitar, Stevie 
    will give Bryan the guitar for $1000.

When Brian gives Stevie $1000, Stevie must give Bryan the guitar. When
Stevie gives Bryan the guitar, Bryan must give Stevie $1000. Both are
conditions precedent forming condition concurrent to the grant of rights
under the copyright law.

The party who wants to make the grant of copyright rights above
effective must perform its condition precedent in order to establish the
duty of performance by the other party: Stevie gives Bryan the
guitar/Brian gives Stevie $1000.

(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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