Rjack wrote: [...] > http://www.rosenlaw.com/BadFactsMakeGoodLaw.pdf
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 conclusion: http://groklaw.net/pdf/Novell-301.pdf "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? Californians? TIA. regards, alexander. -- http://gng.z505.com/index.htm (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.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
