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Re: GPL question

From: Alexander Terekhov
Subject: Re: GPL question
Date: Thu, 18 Oct 2007 18:07:05 +0200

Alexander Terekhov wrote:
> rjack wrote:
> >
> > Alexander Terekhov wrote:
> >
> > > Note that the GPLv2 does not acknowledge First Sale when it states
> > > "However, nothing else grants you permission to modify or distribute
> > > the Program or its derivative works."
> >
> > The GPL (and Herr Professor Moglen) is attempting to redefine
> > what a "condition" means with respect to a copyright license. A
> > "condition" is not a legal term concerning *formation* of a
> > contract but refers to *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 ยง 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."; RT Computer Graphics v, United
> > States,(USCFC 1999.)
> >
> >
> I hope than Monsoon folks will take an opportunity to trash Moglen's
> nonsensical GNU legal theory myths in federal court. The answer is due
> October 22.
> U.S. District Court
> United States District Court for the Southern District of New York
> (Foley Square)
> CIVIL DOCKET FOR CASE #: 1:07-cv-08205-JES
> Andersen et al v. Monsoon Multimedia, Inc.
> Assigned to: Judge John E. Sprizzo
> Cause: 17:501 Copyright Infringement

> Date Filed: 09/19/2007
> Jury Demand: None
> Nature of Suit: 820 Copyright

> Jurisdiction: Federal Question

This is golden:

"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. "

So much about GNU 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 


"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte

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