Re: GPL question

[rjack]

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 § 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.)

http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.htm