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

From: RJack
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:58:09 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100713 Thunderbird/3.1.1

On 8/7/2010 2:13 PM, ZnU wrote:
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.

[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

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 so.

You seem to be trying very hard to claim the GPL creates a condition
precedent. Perhaps *you* should demonstrate where the GPL *does*
establish the criteria for forming a condition precedent.

Why should I believe that the GPL forms a condition precedent when
no one have ever demonstrated that it does so?

RJack :)

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