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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 15:58:12 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100713 Thunderbird/3.1.1

On 8/8/2010 3:12 AM, ZnU wrote:
In article<>,
RJack<>  wrote:

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 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 ³provided² may
or may not indicate a condition, noting that ³Œthere is no
magic in the term [³provided²], 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.¹²
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 ³provided, that² was not a condition)).

³It 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: ŒBut the
words, ³upon the express condition,² as here used, or the words
³if it shall so happen² or ³provided however² 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.¹ (2
Washburn on Real Property, 4.)

³In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is
declared that ŒThe 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

³Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl.
6, 1 L. R. A. 380], it is said: ŒWhile the words ³provided
nevertheless² and ³upon the following conditions² 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.¹

³Indeed, the decisions are uniform to the point that, while
ordinarily the word Œprovided¹ indicates that a condition
follows, as expressed in Boston S. and D. v. Thomas, 59 Kan.
470, [53 Pac. 472], Œthere 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.¹

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

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

Because a court found that the Artistic License did, and the language
and mechanism through which the GPL grants permission to redistribute
is similar.

A cow and a dog are *similar* (they're both mammals). Ever try milking a

Please, just show me the condition precedent in the GPl.

RJack :)

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