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Re: Psystar's legal reply brief in response to Apple

From: ZnU
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:59 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <>,
 Alexander Terekhov <> wrote:

> ZnU wrote:
> [...]
> > OK, I understand your argument. But I'm not sure I buy it. Are you
> > saying if I sign a contract with someone that says I can make as many
> > copies of their software as I want for $5 each, and then go and make a
> > bunch of copies and don't pay for them, I have merely breached a
> > contract and not committed copyright violation? 
> Yep.
> 4
> "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 , § 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). Graham and
> James orally agreed to the licensing agreement and did not clearly
> delineate its conditions and covenants.

It seems to me the answer is not "Yep", as you say above, but rather, "it 

The GPL is not an oral agreement, and the word "conditions" appears all over 
Thus there is very clear evidence of intent to create conditions that was 
in the case you cite. And the conditions the GPL sets out would seem to meet 
required definition given above.

All you've demonstrated here is that it's possible to undermine one's ability 
sue for copyright infringement by being sufficiently sloppy. This is not 
especially surprising.

> Further, it is important that James turned over the C version for use 
> before any royalties were paid, and that the first version of 
> PDSI-004-1 was published with the proper notice of authorship, 
> because contract obligations that are to be performed after partial 
> performance by the other party are not treated as conditions. 22 N.Y. 
> Jur. 2d Contracts § 265 (1996); see also Jacob Maxwell, Inc. , 110 
> F.3d at 754 (holding that payment of royalties and crediting of 
> author were covenants because "[the composer] expressly granted [the 
> licensee] permission to play the song before payment was tendered or 
> recognition received"); I.A.E., Inc. , 74 F.3d at 778 (holding that 
> full payment was not a condition precedent when the licensee received 
> the copyrighted drawings after tendering only half the required 
> payment).

This also does not really seem applicable to the GPL, because the GPL does not 
grant permission to redistribute _prior_ to meeting the necessary conditions. 
Rather, you must meet the necessary conditions simultaneously with the 

> Guided by that analysis, together with New York's presumption 
> favoring covenants over conditions and the district court's clear 
> finding that a licensing agreement came into existence, we conclude 
> that the notice and royalty obligations would likely be considered 
> covenants, and cannot be relied upon by James as conditions. "

"The game of professional investment is intolerably boring and over-exacting to
anyone who is entirely exempt from the gambling instinct; whilst he who has it
must pay to this propensity the appropriate toll." -- John Maynard Keynes

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