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Re: Settlements


From: Hyman Rosen
Subject: Re: Settlements
Date: Tue, 02 Mar 2010 09:50:25 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv:1.9.1.5) Gecko/20091204 Thunderbird/3.0

On 3/1/2010 9:53 PM, RJack wrote:
> Copying and distribution are
*expressly* permitted by the Artistic license with neither scope of use
restriction nor condition precedent to limit the licensed rights

No, that's wrong according to CAFC:
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
    The clear language of the Artistic License creates conditions to
    protect the economic rights at issue in the granting of a public
    license. These conditions govern the rights to modify and distribute
    the computer programs and files included in the downloadable software
    package.

It doesn't matter how much you hate and disagree with this decision.
In the battle of crank vs. court, court always wins.

> When did you finally realize that
simply using a phrase like "provided that" cannot magically turn a
contractual covenant into a scope of use restriction or condition
precedent?

Sorry, but according to CAFC, that's exactly what happens:
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
    The Artistic License also uses the traditional language of
    conditions by noting that the rights to copy, modify, and
    distribute are granted Aprovided that@ the conditions are met.
    Under California contract law, "provided that" typically
    denotes a condition.

It doesn't matter how much you hate and disagree with this decision.
In the battle of crank vs. court, court always wins.

The Supreme Court stated that fact with crystal clarity:
"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.

The only use here is copying and distribution, part of the exclusive
rights enumerated in 17 USC 106. Copying and distribution may only be
carried out by others with permission from the rights holders, and in
the case of the Artistic License and the GPL, such permission comes
only when conditions are adhered to. When those conditions are not met,
the copying and distribution will constitute infringement.

The CAFC has issued its decision. That decision stands regardless of
whether you believe it contradicts the SUpreme Court, until the Supreme
Court itself says otherwise. It doesn't matter how much you hate and
disagree with this decision. In the battle of crank vs. court, court
always wins.


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