http://jmri.sourceforge.net/k/docket/cafc-pi-1/08-1001.pdf
"Having determined that the terms of the Artistic License are enforceable copyright conditions, we remand..." To repeat: "the terms of the Artistic License are enforceable copyright conditions". Man oh man. "A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, BEFORE performance under a contract becomes due." Restatement (Second) of Contracts § 224 (1981). I also like this pearl: "Thus, if the terms of the Artistic License allegedly violated are both covenants and conditions, they may serve to limit the scope of the license and are governed by copyright law. If they are merely covenants, by contrast, they are governed by contract law. See Graham, 144 F.3d at 236-37 (whether breach of license is actionable as copyright infringement or breach of contract turns on whether provision breached is condition of the license, or mere covenant); Sun Microsystems, 188 F.3d at 1121 (following Graham; independent covenant does not limit scope of copyright license)." Now, here's Graham: http://bulk.resource.org/courts.gov/c/F3/144/144.F3d.229.96-9224.96-9272.97-7706.794.795.html "Third, James argues that the license was voided when Graham breached its conditions by nonpayment of royalties and removal of James's copyright notice. This argument turns--and fails--on the distinction in contract between a condition and a covenant. Generally, "[i]f the [licensee's] improper conduct constitutes a breach of a covenant undertaken by the [licensee] ... and if such covenant constitutes an enforcible contractual obligation, then the [licensor] will have a cause of action for breach of contract," not copyright infringement. 3 Nimmer on Copyright, supra, § 10.15[A], at 10-120. However, "[i]f the nature of a licensee's violation consists of a failure to satisfy a condition to the license ..., it follows that the rights dependant upon satisfaction of such condition have not been effectively licensed, and therefore, any use by the licensee is without authority from the licensor and may therefore, constitute an infringement of copyright." Id. at 10-121 (citations omitted); see also Fantastic Fakes, Inc. v. Pickwick Int'l, Inc., 661 F.2d 479, 483-84 (5th Cir.1981). A condition has been defined as "any fact or event which qualifies a duty to perform." Costello Publ'g Co. v. Rotelle, 670 F.2d 1035, 1045 n. 15 (D.C.Cir.1981) (citing Corbin, Conditions in the Law of Contract, 28 Yale L.J. 739 (1919)). We think that the payment of royalties and the inclusion of a notice crediting James's authorship are to be considered covenants, not conditions. The construction of the licensing agreement is governed by New York law. See Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150, 153 (2d Cir.1968). Generally speaking, New York respects a presumption that terms of a contract are covenants rather than conditions. See Grand Union Co. v. Cord Meyer Dev. Co., 761 F.2d 141, 147 (2d Cir.1985) ("In the absence of more compelling evidence that the parties intended to create a condition, the negotiation provision must be construed as a promise or covenant."); Warth v. Greif, 121 A.D. 434, 106 N.Y.S. 163, 165 (2d Dep't 1907) ("The law favors covenants, rather than conditions precedent."), aff'd, 193 N.Y. 661, 87 N.E. 1129 (1908). " How much drunk one must be to find ANY conditions PRECEDENT in the Artistic License? Artistic Licenses contains NO conditions PRECEDENT whatsoever (and no scope limitations as well). regards, alexander. -- "Copyright license -> Copyright law Contract -> Contract law DUH!" -- mini-RMS <[EMAIL PROTECTED]> _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
