Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Rjack]

Alexander Terekhov wrote:
> http://jmri.net/k/docket/227.pdf

> Lastly, Plaintiff must prove a likelihood of success on the merits or
> a fair chance of success on the merits of his copyright claim.

It's a loooooooong way from over. The Federal Circuit ruled narrowly on
whether the terms were "covenants" or "conditions" and that's all --
discovery has yet to be initiated concerning the merits of the case.

Contract "conditions" and "covenants" are both "contract terms". Terms
of a contract are subject to the rules of contract interpretation
whether they are covenants or conditions.

Consider:

"You may copy my work if you *promise* to murder your mother" and
another that states, "You may copy my work *provided that* you murder
your mother". One contains a contract covenant the other a contract
condition but they are both illegal terms that are held against the
drafter of the contract.

Copyright preemption, illegal terms ("against public policy"), mutual
mistake, and impossibility of terms (among a thousand other rules) have
yet to be examined under the Federal Circuit's implimentation of
"condition" versus "covenant".

Anyone remember Yogi Berra's "It ain't over 'till it's over"?

Sincerely,
Rjack :)

-- "Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006) --