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Re: Shoplifting, concealment, liability presumption

From: RJack
Subject: Re: Shoplifting, concealment, liability presumption
Date: Tue, 04 May 2010 16:08:27 -0000
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
On 3/10/2010 12:21 PM, Alexander Terekhov wrote: doesn't
even use the magic word "condition"!

So much about CAFC's

"The Artistic License states on its face that the document creates conditions: "The intent of this document is to state the
_conditions_ under which a Package may be copied." (Emphasis

It still contains "provided that", which <> Under California
contract law, "provided that" typically denotes a condition.

Unfortunately conditions come in three general kinds, which
the CAFC blindly confused:

1) conditions precedent (satisfied before)
2) conditions concurrent (satisfied simultaneously)
3) conditions subsequent  (satisfied after the fact)

Failure to satisfy a condition precedent prevents a permissions
grant in a license from ever coming into effect.

"ARTICLE 224 -- Restatement (Second) of Contracts
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."

Conditions concurrent and conditions subsequent do not prevent
license permissions from coming into effect and do not cause infringement.

I know that temporal concepts such as precedent, concurrent and
subsequent are too difficult for some to grasp but consulting
any basic contract textbook will help explain the difference.

Simply calling something a "condition" without satisfying the
appropriate definition is nonsense. You may call a horse a Cadillac
but it doesn't make it one -- except in Hyman's world.

RJack :)

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