rms at 1407.org claiming "licenses aren't contracts" and that...

[Alexander Terekhov]

On 10/18/07, Ernest Prabhakar <ernest.prabhakar at gmail.com> wrote:
> Hi Alexander,
>
> On Oct 18, 2007, at 10:43 AM, Alexander Terekhov wrote:
> > (Subject changed: back on "license-discuss" topicality :-) )
>
> I'm sorry, I honestly don't see how this in "on-topic".  Please email
> me directly so we can sort this out.

Let's sort this out in public, not off-band. Okay?

Why not discuss here on *license discuss* forum (not license approval
or some such) http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.htm
ruling by the United States Court of Federal Claims and specifically

1.what a word "condition" means in the context of a copyright license
and *formation* vs. *performance* of a contract:

"Regarding plaintiff's first argument that the credit requirement
was a condition precedent to the granting of the license, the
court does not agree. According to the Restatement (Second) of
Contracts § 224 (1981), a condition is "an event, not certain to
occur, which must occur, unless its nonoccurrence is excused,
before performance under a contract becomes due." See also Wells
Fargo Bank, N.A. v. United States, 88 F.3d 1012, 1019 (Fed. Cir.
1996) (quoting In re Matthieson, 63 B.R. 56, 60 (D. Minn. 1986),
for the statement that "a condition precedent is a condition
precedent to performance under the contract, not formation of the
contract. When a condition precedent is not satisfied, it
relieves a party to the contract of the obligation to perform. It
does not negate the existence of the contract or the binding
contractual relationship of the parties."), cert. denied, 520
U.S. 1116 (1997). "Conditions precedent are disfavored and will
not be read into a contract unless required by plain, unambiguous
language." Effects Assocs., Inc. v. Cohen, 908 F.2d at 559 n.7;
accord Jacob Maxwell, Inc. v. Veeck, 110 F.3d at 754; I.A.E.,
Inc. v. Shaver, 74 F.3d at 778."

and

2. (pseudo) legal theory of "automatically and ipso facto" termination
on a slightest breach without ability to cure and without any formal
withdrawal of previously-given permission by the injured party in
light of these holdings:

"Like the programmer in Graham v. James and the songwriter in Maxwell,
RT Graphics never formally withdrew previously-given permission which
allowed the alleged infringer to use the copyrighted material. See also
Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996)
(even assuming that movie producer materially breached licensing
agreement to use composer's song in film, composer never attempted to
exercise any right of rescission and summary judgment of
noninfringement of copyright was proper); Cities Serv. Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach
does not automatically and ipso facto end a contract. It merely gives
the injured party the right to end the agreement; . . . ."). In the
case at bar, the court finds that there was no rescission of the
contract by plaintiff. Moreover, the Postal Service's conduct was
insufficient to justify any rescission which could have taken place,
and did not indicate a repudiation of the licensing agreement.
Accordingly, the court holds that the Use Agreement was at all times
valid and enforceable during the course of this dispute, and any
remedy which the plaintiff may seek for its failure to receive credit
cannot properly be based on a theory of copyright infringement. "

See also

http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf

"I am not persuaded based on this record that the release of the
Gemini source code in July 2001 didn't cure the breach."

<?>

regards,
alexander.

--
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