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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 15:58:15 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/8/2010 12:07 PM, ZnU wrote:

The GPL also explicitly sets out conditions, labeled as such, and
uses the "provided that" language. For instance:

"You may convey a work based on the Program, or the modifications to
produce it from the Program, in the form of source code under the
terms of section 4, provided that you also meet all of these
conditions: [list of conditions]"

In, fact the licenses are _so_ similar in the relevant respects that
 you could literally do a search/replace on "Artistic License" with
"GPL" in the ruling and, with the exception of a single example given
of a provision from the Artistic License, everything else the ruling
says about the license would still be accurate.

Basically, to argue that the Jacobsen v. Katzer reasoning doesn't
apply to the GPL, you'd need to argue that there was some
_additional_ factor relevant to the GPL that somehow undermined its
use of the same language that was held to create a condition
precedent in Jacobsen. What might that factor be?

The Artistic License is not the General Public License.

What you *will never admit to* is that the phrase "provided that" omits
the preposition "before" as in "provided that before". Section 224 of
the Restatement Second of Contracts states: "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." If you
don't satisfy the condition (event) *beforhand* then you get no
copyright permissions -- the license never comes into existence.

What you *wish to do* is conflate a "condition precedent" with a "scope
of use" restriction (also confusingly referred to as a "condition"
sometimes) which is a very different concept. See:

"An unlicensed *use* of the copyright is not an infringement unless it
conflicts with one of the specific exclusive rights conferred by the
copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S., at
417 (1984).

Judge Shira Scheindlin is trying the Best Buy Inc. case involving the
GPL contract.

Here is Judge Scheindlin in a previous contract case:

"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.

How do you think Judge Scheindlin is going to interpret the word
"condition" in the GPL's terms and conditions?

RJack :)

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