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Re: Lawrence Rosen explains the CAFC Artistic decision / In search for D

From: Alexander Terekhov
Subject: Re: Lawrence Rosen explains the CAFC Artistic decision / In search for Diepenbrock v. Luiz case cited first by SCO and then CAFC
Date: Sat, 04 Oct 2008 16:26:05 +0200

Rjack wrote:

I sorta agree with Lawrence Rosen that: 

"The CAFC relied on a long-ago California Supreme Court decision to the
effect that a condition can be found by "attributing the usual and
ordinary signification to the language of the parties." [Pg. 1381,
citing Diepenbrock v. Luiz, 159 Cal. 716 (1911)] Thus the CAFC
determined that the Artistic License, when it also uses the phrase
"provided that," "denotes a condition" under California contract law.
[Pg. 1381] This does, however, raise an interesting question: Of the
current approved open source and Creative Commons licenses, which of
them clearly distinguish their conditions from their covenants, and
under which state's contract law do we analyze that question?"

To repeat:

"This does, however, raise an interesting question..." 

(I fully agree with that.)

Ha ha.

But interestingly enough, it appears that a while back >>>SCO's<<<
lawyers also cited to Diepenbrock v. Luiz arriving at the diametrical

"As discussed by The Supreme Court of California, the term “provided”
may or may not indicate a condition, noting that “‘there is no magic in
the term [“provided”], and the clause in a contract is to be construed
from the words employed and from the purpose of the parties, gathered
from the whole instrument.’” Diepenbrock v. Luiz, 115 P. 743, 744 (Cal.
1911) (quoting Boston Safe Dep. and Trust Co. v. Thomas, 53 P. 472 (Kan.
1898) (finding that, based on a reading of an entire provision, a clause
containing “provided, that” was not a condition))." 

Very interesting, to say the least. 

Does anyone here have access to Diepenbrock v. Luiz decision? 




(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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