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Re: First Sale upheld in software case
From: |
Alexander Terekhov |
Subject: |
Re: First Sale upheld in software case |
Date: |
Wed, 07 Oct 2009 15:40:22 +0200 |
Hyman Rosen wrote:
>
> Rjack wrote:
> > There is no right of attribution listed in 17 USC 106.
>
> There is no right to payment listed either. That is because
> the list of rights lists the things that the rights holder
> alone may do or authorize, not the forms of compensation he
> may elect to receive.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=969224
"Third, James argues that the license was voided when Graham breached
its conditions by nonpayment of royalties and removal of James's
copyright notice. This argument turns--and fails--on the distinction
in contract between a condition and a covenant. Generally, "[i]f the
[licensee's] improper conduct constitutes a breach of a covenant
undertaken by the [licensee] . . . and if such covenant constitutes an
enforcible contractual obligation, then the [licensor] will have a
cause of action for breach of contract," not copyright infringement. 3
Nimmer on Copyright , supra , ยง 10.15[A], at 10-120. However, "[i]f
the nature of a licensee's violation consists of a failure to satisfy
a condition to the license . . ., it follows that the rights dependant
upon satisfaction of such condition have not been effectively
licensed, and therefore, any use by the licensee is without authority
from the licensor and may therefore, constitute an infringement of
copyright." Id. at 10-121 (citations omitted); see also Fantastic
Fakes, Inc. v. Pickwick Int'l, Inc. , 661 F.2d 479, 483-84 (5th Cir.
1981). A condition has been defined as "any fact or event which
qualifies a duty to perform." Costello Publ'g Co. v. Rotelle , 670
F.2d 1035, 1045 n.15 (D.C. Cir. 1981) (citing Corbin, Conditions in
the Law of Contract , 28 Yale L.J. 739 (1919)).
We think that the payment of royalties and the inclusion of a notice
crediting James's authorship are to be considered covenants, not
conditions. The construction of the licensing agreement is governed by
New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc. , 391 F.2d 150,
153 (2d Cir. 1968). Generally speaking, New York respects a
presumption that terms of a contract are covenants rather than
conditions. See Grand Union Co. v. Cord Meyer Dev. Co. , 761 F.2d 141,
147 (2d Cir. 1985) ("In the absence of more compelling evidence that
the parties intended to create a condition, the negotiation provision
must be construed as a promise or covenant."); Warth v. Greif , 106
N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather
than conditions precedent."), aff'd , 193 N.Y. 661 (1908). "
Stop being utter idiot, Hyman.
regards,
alexander.
--
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