MPL use of the term "condition" to masquerade "Responsibilities"

[Alexander Terekhov]

On Thu, Dec 2, 2010 at 3:06 PM, Romain Berrendonner
<romain at berrendonner.org> wrote:
> Le 02/12/2010 14:51, Alexander Terekhov a écrit :
>>
>> On the other hand, the MPL's "Responsibilities" just can't be
>> fulfilled without license grant being in effect and hence just can't
>> be conditions under US Restatement of Contracts 2d, Section 224.
>
> Isn't it just that these conditions are actually condition subsequent rather
> than condition precedent ?

Well,

2009 California Civil Code - Section 1434

"1438.  A condition subsequent is one referring to a future event,
upon the happening of which the obligation becomes no longer binding
upon the other party, if he chooses to avail himself of the
condition."

http://ftp.resource.org/courts.gov/c/F3/341/341.F3d.385.02-50625.html

"A condition subsequent is "a condition referring to a future event,
upon the happening of which the obligation becomes no longer binding
upon the other party, if he chooses to avail himself of the condition."
Rincones v. Windberg, 705 S.W.2d 846, 848 (Tex.App. — Austin 1986, no
writ); Black's Law Dictionary 293-94 (6th Ed.1990). The provision in the
continuing contract here established both the initial provision of
certification and the subsequent maintenance of it throughout the
contract as conditions subsequent. While it is true that the contract
states that failure to maintain certification "may be grounds for
dismissal," thereby suggesting dismissal is not always automatic, such
permissive phrasing is nonetheless consistent with the definition of a
condition subsequent, which gives the party not obligated by the
condition the choice of whether to avail himself of the opportunity to
terminate the contract. "

I guess we could say that FAILURE to perform the MPL's
"Responsibilities" is a condition subsequent, which gives the MPL
licensor the choice of whether to avail himself of the opportunity to
terminate the contract.

AFAIK in the copyright licensing context under US copyright laws the
termination/rescission of licensing contracts is never "automatic":

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c

"In addition, prior to the filing of the infringement suit, RT Graphics
never took affirmative steps to terminate the license which it had
granted. This court agrees with other courts which have previously held
that such a measure is necessary on the part of the copyright holder. In
Graham v. James, the Court of Appeals for the Second Circuit stated that
"[e]ven assuming [the publisher] materially breached the licensing
agreement and that [the programmer] was entitled to rescission, such
rescission did not occur automatically without some affirmative steps on
[the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of
Appeals for the Eleventh Circuit expressed a similar view:

[E]ven assuming arguendo that the Miracle's conduct constituted a
material breach of the parties' oral understanding, this fact alone
would not render the Miracle's playing of the song pursuant to
[Albion's] permission a violation of [Albion's] copyright. Such a breach
would do no more than entitle [Albion] to rescind the agreement and
revoke [his] permission to play the song in the future, actions [he] did
not take during the relevant period.

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. "

regards,
alexander.