[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: First Sale upheld in software case

From: Alexander Terekhov
Subject: Re: First Sale upheld in software case
Date: Wed, 07 Oct 2009 15:40:22 +0200

Hyman Rosen wrote:
> Rjack wrote:
> > There is no right of attribution listed in 17 USC 106.
> There is no right to payment listed either. That is because
> the list of rights lists the things that the rights holder
> alone may do or authorize, not the forms of compensation he
> may elect to receive.

"Third, James argues that the license was voided when Graham breached 
its conditions by nonpayment of royalties and removal of James's 
copyright notice. This argument turns--and fails--on the distinction 
in contract between a condition and a covenant. Generally, "[i]f the 
[licensee's] improper conduct constitutes a breach of a covenant 
undertaken by the [licensee] . . . and if such covenant constitutes an 
enforcible contractual obligation, then the [licensor] will have a 
cause of action for breach of contract," not copyright infringement. 3 
Nimmer on Copyright , supra , ยง 10.15[A], at 10-120. However, "[i]f 
the nature of a licensee's violation consists of a failure to satisfy 
a condition to the license . . ., it follows that the rights dependant 
upon satisfaction of such condition have not been effectively 
licensed, and therefore, any use by the licensee is without authority 
from the licensor and may therefore, constitute an infringement of 
copyright." Id. at 10-121 (citations omitted); see also Fantastic 
Fakes, Inc. v. Pickwick Int'l, Inc. , 661 F.2d 479, 483-84 (5th Cir. 
1981). A condition has been defined as "any fact or event which 
qualifies a duty to perform." Costello Publ'g Co. v. Rotelle , 670 
F.2d 1035, 1045 n.15 (D.C. Cir. 1981) (citing Corbin, Conditions in 
the Law of Contract , 28 Yale L.J. 739 (1919)). 

We think that the payment of royalties and the inclusion of a notice 
crediting James's authorship are to be considered covenants, not 
conditions. The construction of the licensing agreement is governed by 
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150, 
153 (2d Cir. 1968). Generally speaking, New York respects a 
presumption that terms of a contract are covenants rather than 
conditions. See Grand Union Co. v. Cord Meyer Dev. Co. , 761 F.2d 141, 
147 (2d Cir. 1985) ("In the absence of more compelling evidence that 
the parties intended to create a condition, the negotiation provision 
must be construed as a promise or covenant."); Warth v. Greif , 106 
N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather 
than conditions precedent."), aff'd , 193 N.Y. 661 (1908). "

Stop being utter idiot, Hyman.


(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.)

reply via email to

[Prev in Thread] Current Thread [Next in Thread]