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Re: Settlements

From: RJack
Subject: Re: Settlements
Date: Fri, 26 Feb 2010 10:56:04 -0500
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
On 2/26/2010 9:32 AM, RJack wrote:
"As we said in Bourne, when the contested issue is the scope of a license, rather than the existence of one, the copyright owner bears the burden of proving that the defendant's copying was unauthorized under the license and the license need not be pleaded as an affirmative defense." Graham v. James, 144 F.3d 229 (2nd Cir.

Sounds correct to me. It will be easy to demonstrate this, since the defendants are not making GPLed sources properly available.

This also, from the same decision: <> 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.");

The GPL clearly establishes requirements as a condition for receiving
 permission to copy and distribute.

Alexander and I have gone to great lengths to explain to you the
difference between a "condition precedent" and a "scope of use"
condition. Either you are incapable of understanding the difference
in the two concepts or you are deliberately confusing the two concepts.

OK, one more time;

*** Condition Precedent
"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 Sec. 224

A condition precedent determines *when* a license grant first comes into
existence. Obviously an “event” that *depends* on the 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.

Now, one more time;

*** Scope of Use Condition;
A *direct* stated limitation in a license grant that limits a specific

"An unlicensed use of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
417 (1984).

Merely calling something in a license a "condition" does *not* make it
a condition -- the condition must violate one of the specific rights
granted in 17 USC 106 while no permission in the license otherwise
exists to do so.

A mistake is often made in open source licenses. A deliberately broad
grant of rights is stated in the first part of a license and *then*
subsequently, conditions are defined in the license. That constitutes
conflicting language and is construed strictly against the drafter. Now,
*once* a permission is granted you can't subsequently sue for copyright
 infringement, only for breach of contract. The Supreme Court
established this principle in 1927:

"Any language used by the owner of the patent or any conduct on his part
exhibited to another, from which that other may properly infer that the
owner consents to his use of the patent in making or using it, or
selling it, upon which the other acts, constitutes a license, and a
defense to an action for a tort. Whether this constitutes a gratuitous
license or one for a reasonable compensation must, of course, depend
upon the circumstances; but the relation between the parties thereafter
in respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner.";  De Forest Radio Tel.
& Tel. Co. v. United States, 273 U.S. 236, (1927).

RJack :)

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