Hyman Rosen wrote:
Alexander Terekhov wrote:
FOSS licenses have neither scope-of-use limitations nor any
conditions precedent to the grant of rights. Hence FOSS
licensors "can sue only for breach of contract".
False, of course.
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf> The Artistic
License states on its face that the document creates conditions:
"The intent of this document is to state the conditions under
which a Package may be copied." (Emphasis added.) The Artistic
License also uses the traditional language of conditions by
noting that the rights to copy, modify, and distribute are
granted "provided that" the conditions are met.
Under California contract law, "provided that" typically denotes
a condition.
I agree that typically "provided that" may denote a contractual
condition. So what?
For a contractual "condition" to be relevant to an infringement
claim it must constitute a "condition precedent" to the grant of
rights in the contract. If a valid condition precedent is not
satisfied then no license exists and infringement occurs.
Sigh. . .
The CAFC never mentioned that the word "condition" has two different
meanings in a license context. I doubt Freetards will *ever* be able
to understand the legal difference between a traditional contractual
"condition" precedent and a non-contractual "condition" used to
denote a "scope of use" restriction. The subject requires more
cognitive ability than Freetards can muster.
Sincerely,
Rjack :)
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