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

[Alexander Terekhov]

(Item number three added below)

On 10/19/07, Alexander Terekhov <alexander.terekhov at gmail.com> wrote:
> 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."

3. an issue of "legal standing":

http://www.softwarefreedom.org/news/2007/sep/20/busybox/complaint.pdf

A license such as the GPL contains terms that direct "designated third
party beneficiaries". Any consideration flowing from the GPL 2(b) is
assigned to "all third parties". This consideration is certainly
sufficient under contract law to form a valid contract:

"In addition, under contract law, a contract is supported by
consideration even if the consideration flows solely to a third party.
See Mencher v. Weiss, 114 N.E.2d at 181("[I]t is fundamental that a
benefit flowing to a third person or legal entity constitutes a
sufficient consideration for the promise of another."); RESTATEMENT
(SECOND) OF CONTRACTS § 71, cmt. e (1981)  ("It matters not from whom
the consideration moves or to whom it goes. If it is bargained for and
given in exchange for the promise, the promise is not gratuitous.");
see generally 3 WILLISTON § 7:5, at 60 ("It is well settled that a
detriment suffered by the promisee at the promisor's request and as
the price for the promise is sufficient, despite the fact that the
promisor is not benefited as well."); In re: Asia Global Crossing,
Ltd., et al. 322 B.R. 247 (Bankr. S.D.N.Y., March 21, 2005).

There is a fundamental principle underlying all actions in federal courts:

"Standing doctrine delimits federal jurisdiction to, among other
things, cases involving real injuries to plaintiffs, the so-called
"injury-in-fact" requirement."; Brooklyn Legal Services Corp. v. Legal
Services Corp., 462 F.3d 219 (Second Cir. 2006).

Although the copyright owners filed the action in federal court in the
Monsoon case they have suffered no "injury in fact" from the claimed
breach of the GPL -- which is stated in the complaint as failure to
provide access to the work's source code under sec.  2(b)
requirements. As we have seen, sec. 2(b) requires access to source
code be provided to "all third parties" and not the original licensor.
In the legal arena you can't claim damages from some else's injuries.
A plaintiff must suffer a personal "injury in fact" before he has
standing in court. In the United States designated third party
beneficiaries have standing to sue in their own right.

"The "irreducible constitutional minimum of standing contains three
elements": "[T]he plaintiff must have suffered an injury in fact,"
"there must be a causal connection between the injury and the conduct
complained of, " and "it must be likely . . . that the injury will be
redressed by a favorable decision." Id. At 560-61 (internal quotations
omitted).(5) The plaintiffs, as the party invoking federal
jurisdiction, bear the burden of establishing these elements. Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998). Failure
to establish any one deprives the federal courts of jurisdiction to
hear the suit.;  Elizabeth Rivera v. Wyeth-Ayerst Laboratories
(01-40122) (5th Cir. 2002)

<?>

regards,
alexander.

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