The decision of the Federal Circuit finally makes sense! The Court stated:
"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). The District Court did not expressly state whether the limitations in the Artistic License are independent covenants or, rather, conditions to the scope; its analysis, however, clearly treated the license limitations as contractual covenants rather than conditions of the copyright license." The Court of Appeals for the Federal Circuit is using the term "conditions to the scope" when referring to the effect caused by a "condition precedent" or "condition subsequent" on the contractual performance of a "GRANT OF RIGHTS". The "conditions to the scope" the Court is referring to are *contractual terms*. The confusion caused by the Federal Circuit's use of the word "scope" in a context different from a "field (scope) of use" limitation is causing the great uproar over "license conditions". Eben Moglen and PJ believe the term "scope" as used by the Court has the effect of a "field (scope) of use" limitation. That is *not* the meaning contemplated by the Federal Circuit's language. Unless and until Eben Moglen and PJ understand the difference between the effect of a "field (scope) of use" limitation and the effect of a contractual "condition to the scope" they will go on wildly claiming that a "license is not a contract". The Federal Circuit absolutely understands that a license *is* a contract: "Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of Appeals for the Federal Circuit 1995) Sincerely, Rjack -- FIELD OF USE RESTRICTION [general intellectual property-antitrust]. A provision in an intellectual property license restricting the licensee to use of the licensed property only in a defined product or service market. -- _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
