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Re: Effect of transfer of copyright on free software licenses?

From: Alexander Terekhov
Subject: Re: Effect of transfer of copyright on free software licenses?
Date: Thu, 23 Jul 2009 19:05:11 +0200

Hyman Rosen wrote:
> Jacobson v. Katzer understood this and made the distinction in its
> findings: <>
>     Having determined that the terms of the Artistic License are
>     enforceable copyright conditions...

CAFC totally screwed up California *CONTRACT* law regarding "provided 
that" wording (in addition to confusing conditions precedent to grant 
of rights with scope-of-use limitations on grant of rights). 

“Under California contract law, “provided that” typically denotes a 
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)” 

The CAFC further ruled: 

“The choice to exact consideration in the form of compliance with the 
open source requirements of disclosure and explanation of changes...” 

How on earth can “disclosure and explanation of changes” come before 
(be a condition precedent) to the license grant? 

As discussed by The Supreme Court of California, the term “provided” 
may or may not indicate a condition, noting that “‘there is no magic 
in the term [“provided”], 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.’” Diepenbrock v. Luiz, 115 P. 743, 
744 (Cal. 1911) (quoting Boston Safe Dep. and Trust Co. v. Thomas, 53 
P. 472 (Kan. 1898) (finding that, based on a reading of an entire 
provision, a clause containing “provided, that” was not a condition)). 

“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.’ 

The Restatement (Second) of Contracts Article 224 states: 

“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.” 

Obviously an “event” that depends on performance of a contract cannot 
occur *before* performance of the contract becomes due. This result is 
called an impossible condition in contract construction and is 
strictly construed *against* the drafter. 

The ruling of the CAFC reminds me of this limerick ridiculing the 
theory of special relativity: 

There was a young lady named Bright, 
Whose speed was far faster than light. 
She went out one day, 
In a relative way 
And returned the previous night! 

- Arthur Reginald Buller 

See also 


(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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