(OT) - NOT A Major Blow to Copyleft Theory

Russ Nelson nelson at crynwr.com
Fri Feb 8 17:47:38 UTC 2008

You misunderstand.  There is no license TO REDISTRIBUTE without
complying with the conditions.  A covenant exists only within the
context of a license.  And, a covenant is a solemn promise.  Does a
judge seriously expect that a covenant, bound with seal and oath,
exists between an open source licensor and licensee, who have never
communicated with each other and when the latter is unknown to the

Yes, the license to use the copyrighted materials survives.  So what?
That's not the issue before the court.

Alexander Terekhov writes:
 > On Feb 8, 2008 4:42 PM, Russ Nelson <nelson at crynwr.com> wrote:
 > > Alexander Terekhov writes:
 > >  > The terms of the license do impose certain covenants which are NOT
 > >  > conditions (precedent). Translation: events "which must take place
 > >  > before a party to a contract must perform or do their part"
 > >  > (conditions precedent).  One just can't turn covenants into
 > >  > conditions. Got it now?
 > >
 > > Agreed, but if something isn't a covenant in the first place, then it
 > > *can* be a condition.  A covenant is a solemn promise.  The judge
 > > construed this agreement to license all copyright rights, with
 > > covenants concerning distribution.  Translation: the Defendant got a
 > > license to do anything he wants, and he promised to make only certain
 > > distributions.
 > >
 > > A correct interpretation would have said that the license to use is
 >                                                     ^^^^^^^^^^^^^^^^^
 > > unconditional, but the license to redistribution is conditioned on the
 >   ^^^^^^^^^^^^^
 > Notice "... the authority to use the copyrighted material" part below!
 > > attributes of the work being distributed.  For example, one set of
 > > conditions applies to verbatim distribution.  A different set of
 > > conditions applies to modified distributions.  Translation: each
 > > redistribution is separately licensed.
 > >
 > > Basically, the judge wanted to rule against Jacobsen, so he did.
 > The Fifth Circuit in Fantastic Fakes, Inc. v. Pickwick Intl, Inc., 661
 > F.2d 479 (5th Cir. 1981), a case cited favorably in several Ninth
 > Circuit opinions, rejected an argument that a covenant can be recast
 > as an affirmative grant defining the "scope" of a license agreement.
 > In Fantastic Fakes, the plaintiff entered into a licensing agreement
 > authorizing the defendant to distribute certain of its copyrighted
 > material. The plaintiff claimed that the defendant was infringing its
 > copyright by distributing the material without affixing a proper
 > copyright notice thereto, as required by the license agreement.
 > Section 2 of the agreement, entitled "Grant of Rights," contained the
 > following affirmative license grant:
 > "LICENSOR" hereby grants to "LICENSEE" a nontransferable,
 > nonassignable and nonexclusive License for a period of 2 (TWO) years
 > from the date hereof, to use the "ORIGINAL MASTER RECORDINGS" listed
 > and identified on the schedule incorporated by reference herewith.
 > Id. at 481. Section 2 further provided that the license was granted
 > "subject to and in accordance with the following" :
 > (b) "LICENSEE" shall cause to appear on all sound recordings,
 > including cartridge tapes, produced from "ORIGINAL MASTER RECORDINGS"
 > a copyright notice such that said notice appears on the surface of the
 > copies of the recording or on the label or container, in such a manner
 > and location as to give reasonable notice ...
 > Id. at 481-82. The Fantastic Fakes court did not find that section
 > 2(b) limited the scope of the license. See Id. at 483-84. Rather, the
 > court held that the notice requirement was a covenant, the breach of
 > which "may support a claim of damages for breach of contract but will
 > not disturb the remaining rights and obligations under the license
 > including the authority to use the copyrighted material." Id.
 > regards,
 > alexander.
 > --
 > "Notwithstanding Jacobsen's confused discussion of unilateral
 > contracts, bilateral contracts, implied licenses, "licenses to the
 > world" and "bare" licenses in his Appellant's Brief, the issue at hand
 > is fairly simple."
 >  -- Brief of Appellees (CAFC 2008-1001).

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