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Re: CAFC took JMRI case under advisement
From: |
Alexander Terekhov |
Subject: |
Re: CAFC took JMRI case under advisement |
Date: |
Fri, 04 Jul 2008 18:52:32 +0200 |
rjack wrote:
>
> Hyman Rosen wrote:
> > rjack wrote:
> >> Eben Moglen is asking the Court of Appeals for the Federal Circuit
> > > to overturn the clear and unequivocal language of the Supreme Court
> > > in De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236,
> > > United States Supreme Court (1927):
> >>
> >> "Whether this [act] constitutes a gratuitous license, or one
> > > for a reasonable compensation, must, of course, depend upon
> > > the circumstances; but the relation between the parties
> > > thereafter in respect of any suit brought must be held to be
> > > contractual, and not an unlawful invasion of the rights of
> >> the owner."
> >
> > Here's the decision: <http://supreme.justia.com/us/273/236/case.html>.
> > First of all, the case was about a patent, not a copyright. Second,
> > the decision also says
> >
> > 'Concede that, if the owner had said, "If you go on and infringe
> > my patent, I shall not attempt to enjoin you, but I shall
> > subsequently sue you for infringement," the tort would not be
> > waived;'
> >
> > and that is similar to language contained in the GPL.
>
> How 'bout this discussion:
>
> "However, implicit in a nonexclusive license is the promise not to sue for
> copyright infringement. See In re CFLC, Inc., 89 F.3d 673, 677 (9th Cir.
> 1996),
> citing De Forest Radio Telephone Co. v. United States, 273 U.S. 236, 242
> (1927)
> (finding that a nonexclusive license is, in essence, a mere waiver of the
> right
> to sue the licensee for infringement); see also Effects Associates, Inc. v.
> Cohen, 908 F.2d 555, 558 (9th Cir. 1990) (holding that the granting of a
> nonexclusive license may be oral or by conduct and a such a license creates a
> waiver of the right to sue in copyright, but not the right to sue for breach
> of
> contract)." Jacobsen v. Katzer, No. 3:06-cv-01905, (N.D. Cal. 2007)
Hey Hyman,
To repeat: suppose that a copyright license contract of mine clearly
states that
*Before* you make use of my exclusive right(s) you must tell the world
that I am "Alexander The Great and Powerful."
That is a license condition (violation of which I may recover in
copyright.)
http://www.duhaime.org/LegalDictionary/C/Conditionprecedent.aspx
------
Condition precedent
A contractual condition that suspends the coming into effect of a
contract unless or until a certain event takes place.
------
Consider also the following:
http://bulk.resource.org/courts.gov/c/F3/110/110.F3d.749.96-2636.html
------
"Conditions precedent are disfavored and will not be read into a
contract unless required by plain, unambiguous language." Effects
Associates, 908 F.2d at 559 n. 7. On July 2, 1993
------
regards,
alexander.
--
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
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