MPL Beta 1

Alexander Terekhov alexander.terekhov at
Tue Dec 7 15:44:54 UTC 2010

On Mon, Dec 6, 2010 at 8:16 PM, Luis Villa <lvilla at> wrote:
> 2.4. Sections 3.1, 3.2, 3.3, and 3.4 are conditions of the licenses
> granted in Section 2.1.
> 3. Responsibilities.

On its face, Section "3. Responsibilities" specifies *unconditional*
duties (contractual performance) of the licensee under the MPL
agreement. Neither the duties of the MPL licensee nor the duties of
the MPL licensor are conditional in the sense of "condition" under
US Restatement of Contracts 2d, Section 224: Condition Defined. The
only "condition" in the MPL having anything to do with Section "3.
Responsibilities" is a condition subsequent regarding uncertain
event of licensee's failure to perform which is incorrectly***)
explained in Section "5. Termination".

The term "condition" is defined by laws of contracts such as
(California Civil Code - Section 1434-1442 :: Chapter 3. Conditional

and consistently explained by various sources such as

"Performance and breach of contract

Express conditions

A promisor is in breach if they have an absolute duty to perform and
they do not. To determine if there is an absolute duty to perform you
must consider the type and legal effect of conditions in a contract. If
the duty is only a conditional one the promisor is bound only after the
contingency has occurred.

Conditions Precedent, Concurrent, and Subsequent

Conditions precedent.  A condition precedent is one that must occur in
order to create an absolute duty of performance.

Conditions concurrent. Conditions concurrent are mutually dependant
performances capable of nearly simultaneous execution. The contract bind
the parties to render performance at the same time, such as in an
ordinary sales contract, in which payment and delivery are conditions
concurrent; the conditions of payment must occur before the duty to
delivery arises and, the conduction of delivery must occur before the
duty of payment arises.

Legal effect: the legal effect of a conduction concurrent is much the
same as a conduction precedent. If the conditions occurs the other
party’s duty to perform arises; if it does not occur the duty to perform
does not arise.

Conditions Subsequent. A conditions subsequent is one in which the
occurrence of the conduction extinguishes a previously absolute duty to
perform; An emplacement contract in which A agrees to work for B for a
specified period of time unless A is called military service.

Legal effect: Occurrence of the conduction subsequent extinguishes the
other party’s absolute duty to perform."


***) "The rights granted hereunder will terminate automatically if You
fail to comply with any terms herein. "

US Courts disagree.

"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. "

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