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

[RJack]

On 8/8/2010 12:07 PM, ZnU wrote:
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> 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
154-155."; SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S.
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.
Scheindlin.
http://amlawdaily.typepad.com/AbuDhabi.pdf

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

Sincerely,
RJack :)