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Re: Conditions

From: RJack
Subject: Re: Conditions
Date: Tue, 04 May 2010 16:08:41 -0000
User-agent: Thunderbird (Windows/20090812)

Alexander Terekhov wrote:
RJack wrote: [...]
I find it interesting that in 2008 Judge Scheindlin found that an assertion of "condition" in a contract is interpreted to mean a "condition precedent":

n52 "Plaintiffs bring claims for "Contract Failure of Condition" against each defendant. The Court is not familiar with this term. I
 assume "Contract Failure of Condition" is a claim for breach of a
 condition precedent." Abu Dhabi Commercial Bank, et al. v. Morgan
 Stanley & Co., et al., 1:2008cv07508, SDNY, (2008). Judge Shira A.

The following is really nice summary on "conditions".

I believe that the link referenced above should be read while keeping in
mind the Supreme Court's holding in DE FOREST RADIO TELEPHONE &
TELEGRAPH CO. v. UNITED STATES, 273 U.S. 236 (1927).

The Court clearly stated what should be considered as an intellectual
property license:

"No formal granting of a license is necessary in order to give it
effect. 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." DeForest at 241.

The Court then continued to state that after a license has issued, any
subsequent legal action was to be handled as breach of contract:

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."

In 1997 the Eleventh Circuit expressly held that the principles
established in De Forest (supra) applied to copyrights.

"Implicit in that permission was a promise not to sue for copyright
infringement--a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d 673,
677 (9th Cir.1996) ("[A] nonexclusive patent license is, in essence, 'a
mere waiver of the right to sue' the licensee for infringement.")
(quoting De Forest Radio Telephone & Telegraph Co. v. United States, 273
U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625 (1927)). We think it
follows that until permission was withdrawn in October, JMI granted to
the Miracle a nonexclusive license to play the song at games.

In so saying, we do not suggest that Albion and JMI waived their rights
to be compensated by the Miracle in accordance with their oral
understanding. What they waived was any right to sue for breach of
copyright on account of the playing of the song while the license was in
effect. As discussed in the following section, the Miracle's failure to
provide the agreed quid pro quo could not, on the facts of this case,
invalidate the legal effect of Albion's permission to play."; MAXWELL v.
VEECK, 110 F.3d 749, 11th Cir. (1997).

RJack :)

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