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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 15:58:07 -0000
User-agent: MT-NewsWatcher/3.5.3b3 (Intel Mac OS X)

In article <>,
 Alexander Terekhov <> wrote:

> ZnU wrote:
> [...]
> > indeed be copyright violation. He simply cited a case with little
> > similarity to a hypothetical GPL case, in which conditions were not
> > properly established.
> You seem to confuse conditions to the grant of rights and covenants in
> consideration of the rights granted.
> "While a party that owns copyright rights is ordinarily entitled to 
> pursue infringement claims against any third party who violates them, 
> the courts have recognized that the rights and remedies available to 
> copyright holders change significantly when the owner elects to give 
> others a nonexclusive license to use such property. In that situation, 
> the owner/user relationship is fundamentally different. Absent a 
> license, the rights of the copyright holder are governed by statutory 
> and common law rules applicable to such rights. With a license, 
> however, the terms and covenants of the license establish the 
> applicable rules. See Effects Associates, Inc. v. Cohen, 908 F.2d 555, 
> 559 (9th Cir. 1990) (in granting a copyright license, the licensor 
> gives up its right to sue the licensee for infringement). 
> Recognizing that the existence of consensual licensing arrangements 
> significantly changes the applicable rules and the expectations of the 
> parties, federal courts have held that a party cannot normally pursue 
> a copyright infringement action based upon the licensees breach of 
> covenants in the license agreement. As a general rule, " if the 
> [licensees] improper conduct constitutes a breach of a covenant 
> undertaken by the licensee . . . and if such covenant constitutes an 
> enforceable contractual obligation, then the licensor will have the 
> cause of action for contract," not for copyright infringement. Graham 
> v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B. 
> Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120 
> (1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71 
> (D. Ariz. 1996). As the Ninth Circuit explained in Topolos v. 
> Caldewey, 698 F.2d 991, 993 (9th Cir. 1983): 
> [A] case does not arise under the federal copyright laws . . . 
> merely because the subject matter of the action involves or affects a 
> copyright. "
> In Jacobsen, the CAFC ruled:
> "The choice to exact consideration in the form of compliance with the
> open source requirements of disclosure and explanation of changes..." 
> How on earth can "disclosure and explanation of changes" come before 
> (be a condition precedent) to the license grant? 
> As discussed by The Supreme Court of California in Diepenbrock v. Luiz,
> 115 P. 743, 744 (Cal. 1911), the term “provided” may or may not indicate
> a condition, noting that “‘there is no magic in the term [“provided”],
> and the clause in a contract is to be construed from the words employed
> and from the purpose of the parties, gathered from the whole
> instrument.’” Diepenbrock v. Luiz, 115 P. 743, 744 (Cal. 1911) (quoting
> Boston Safe Dep. and Trust Co. v. Thomas, 53 P. 472 (Kan. 1898) (finding
> that, based on a reading of an entire provision, a clause containing
> “provided, that” was not a condition)). 
> “It is undoubtedly true, as claimed by appellant, that stipulations in a
> contract are not construed as conditions precedent unless that
> construction is made necessary by the terms of the contract. ( Deacon v.
> Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140 Cal.
> 318, [73 Pac. 966].) There are also well considered cases holding that
> provided does not necessarily impose a condition. In Hartung v. Witte,
> 59 Wis. 285, [18 N. W. 177], it is said: ‘But the words, “upon the
> express condition,” as here used, or the words “if it shall so happen”
> or “provided however” and the like do not always make a condition, and
> it is often a nice question to determine whether it is a condition or a
> covenant and courts always construe similar clauses in a deed as
> covenants rather than as conditions, if they can reasonably do so.’ (2
> Washburn on Real Property, 4.) 
> “In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
> ‘The word provided though an appropriate word to constitute a common law
> condition does not invariably and of necessity do so. On the contrary,
> it may give way to the intent of the party as gathered from an
> examination of the whole instrument, and be taken as expressing a
> limitation in trust.’ 
> “Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
> R. A. 380], it is said: ‘While the words “provided nevertheless” and
> “upon the following conditions” are appropriate words to create a
> condition, they do not of necessity create such an estate. They and
> similar words, will give way when the intention of the grantor as
> manifested by the whole deed, is otherwise, and they have frequently
> been explained and applied as expressing simply a covenant or a
> limitation in trust.’ 
> “Indeed, the decisions are uniform to the point that, while ordinarily
> the word ‘provided’ indicates that a condition follows, as expressed in
> Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], ‘there is no
> magic in the term, and the clause in a contract is to be construed from
> the words employed and from the purpose of the parties, gathered from
> the whole instrument.’ 
> The Restatement (Second) of Contracts Article 224 states:
> "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."
> Obviously an "event" that depends on 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.

You seem to be trying very hard to raise doubt about Jacobsen v. Katzer, 
the case that touches on this issue most closely. But you're offering 
nothing particularly strong to favor the opposite position. You've 
demonstrated that it's possible to fail to create a condition, but have 
advanced no compelling argument that the GPL, specifically, fails to do 

"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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