Re: rms@1407.org claiming "licenses aren't contracts" and that...

On 10/18/07, Ernest Prabhakar <ernest.prabhakargmail.com> wrote:
> Hi Alexander,
>
> On Oct 18, 2007, at 10:43 AM, Alexander Terekhov
wrote:
> > (Subject changed: back on
"license-discuss" topicality  )
>
> I'm sorry, I honestly don't see how this in
"on-topic".  Please email
> me directly so we can sort this out.

Let's sort this out in public, not off-band. Okay?

Why not discuss here on *license discuss* forum (not license
approval
or some such) http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.h
tm
ruling by the United States Court of Federal Claims and
specifically

1.what a word "condition" means in the context of
a copyright license
and *formation* vs. *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."

and

2. (pseudo) legal theory of "automatically and ipso
facto" termination
on a slightest breach without ability to cure and without
any formal
withdrawal of previously-given permission by the injured
party in
light of these holdings:

"Like the programmer in Graham v. James and the
songwriter in Maxwell,
RT Graphics never formally withdrew previously-given
permission which
allowed the alleged infringer to use the copyrighted
material. See also
Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th
Cir. 1996)
(even assuming that movie producer materially breached
licensing
agreement to use composer's song in film, composer never
attempted to
exercise any right of rescission and summary judgment of
noninfringement of copyright was proper); Cities Serv.
Helex, Inc. v.
United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A
material breach
does not automatically and ipso facto end a contract. It
merely gives
the injured party the right to end the agreement; . . .
."). In the
case at bar, the court finds that there was no rescission of
the
contract by plaintiff. Moreover, the Postal Service's
conduct was
insufficient to justify any rescission which could have
taken place,
and did not indicate a repudiation of the licensing
agreement.
Accordingly, the court holds that the Use Agreement was at
all times
valid and enforceable during the course of this dispute, and
any
remedy which the plaintiff may seek for its failure to
receive credit
cannot properly be based on a theory of copyright
infringement. "

See also

http://pacer.mad.uscourts.gov/dc/opin
ions/saris/pdf/progress%20software.pdf

"I am not persuaded based on this record that the
release of the
Gemini source code in July 2001 didn't cure the
breach."

<?>

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                                  -- http://tinyurl.com/2mn3jc

(Item number three added below)

On 10/19/07, Alexander Terekhov <alexander.terekhovgmail.com> wrote:
> On 10/18/07, Ernest Prabhakar <ernest.prabhakargmail.com> wrote:
> > Hi Alexander,
> >
> > On Oct 18, 2007, at 10:43 AM, Alexander Terekhov
wrote:
> > > (Subject changed: back on
"license-discuss" topicality  )
> >
> > I'm sorry, I honestly don't see how this in
"on-topic".  Please email
> > me directly so we can sort this out.
>
> Let's sort this out in public, not off-band. Okay?
>
> Why not discuss here on *license discuss* forum (not
license approval
> or some such) http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.h
tm
> ruling by the United States Court of Federal Claims and
specifically
>
> 1.what a word "condition" means in the
context of a copyright license
> and *formation* vs. *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."
>
> and
>
> 2. (pseudo) legal theory of "automatically and
ipso facto" termination
> on a slightest breach without ability to cure and
without any formal
> withdrawal of previously-given permission by the
injured party in
> light of these holdings:
>
> "Like the programmer in Graham v. James and the
songwriter in Maxwell,
> RT Graphics never formally withdrew previously-given
permission which
> allowed the alleged infringer to use the copyrighted
material. See also
> Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455
(9th Cir. 1996)
> (even assuming that movie producer materially breached
licensing
> agreement to use composer's song in film, composer
never attempted to
> exercise any right of rescission and summary judgment
of
> noninfringement of copyright was proper); Cities Serv.
Helex, Inc. v.
> United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976)
("A material breach
> does not automatically and ipso facto end a contract.
It merely gives
> the injured party the right to end the agreement; . . .
."). In the
> case at bar, the court finds that there was no
rescission of the
> contract by plaintiff. Moreover, the Postal Service's
conduct was
> insufficient to justify any rescission which could have
taken place,
> and did not indicate a repudiation of the licensing
agreement.
> Accordingly, the court holds that the Use Agreement was
at all times
> valid and enforceable during the course of this
dispute, and any
> remedy which the plaintiff may seek for its failure to
receive credit
> cannot properly be based on a theory of copyright
infringement. "
>
> See also
>
> http://pacer.mad.uscourts.gov/dc/opin
ions/saris/pdf/progress%20software.pdf
>
> "I am not persuaded based on this record that the
release of the
> Gemini source code in July 2001 didn't cure the
breach."

3. an issue of "legal standing":

http://www.softwarefreedom.org/news/2007/se
p/20/busybox/complaint.pdf

A license such as the GPL contains terms that direct
"designated third
party beneficiaries". Any consideration flowing from
the GPL 2(b) is
assigned to "all third parties". This
consideration is certainly
sufficient under contract law to form a valid contract:

"In addition, under contract law, a contract is
supported by
consideration even if the consideration flows solely to a
third party.
See Mencher v. Weiss, 114 N.E.2d at 181("[I]t is
fundamental that a
benefit flowing to a third person or legal entity
constitutes a
sufficient consideration for the promise of another.");
RESTATEMENT
(SECOND) OF CONTRACTS § 71, cmt. e (1981)  ("It matters
not from whom
the consideration moves or to whom it goes. If it is
bargained for and
given in exchange for the promise, the promise is not
gratuitous.");
see generally 3 WILLISTON § 7:5, at 60 ("It is well
settled that a
detriment suffered by the promisee at the promisor's request
and as
the price for the promise is sufficient, despite the fact
that the
promisor is not benefited as well."); In re: Asia
Global Crossing,
Ltd., et al. 322 B.R. 247 (Bankr. S.D.N.Y., March 21,
2005).

There is a fundamental principle underlying all actions in
federal courts:

"Standing doctrine delimits federal jurisdiction to,
among other
things, cases involving real injuries to plaintiffs, the
so-called
"injury-in-fact" requirement."; Brooklyn
Legal Services Corp. v. Legal
Services Corp., 462 F.3d 219 (Second Cir. 2006).

Although the copyright owners filed the action in federal
court in the
Monsoon case they have suffered no "injury in
fact" from the claimed
breach of the GPL -- which is stated in the complaint as
failure to
provide access to the work's source code under sec.  2(b)
requirements. As we have seen, sec. 2(b) requires access to
source
code be provided to "all third parties" and not
the original licensor.
In the legal arena you can't claim damages from some else's
injuries.
A plaintiff must suffer a personal "injury in
fact" before he has
standing in court. In the United States designated third
party
beneficiaries have standing to sue in their own right.

"The "irreducible constitutional minimum of
standing contains three
elements": "[T]he plaintiff must have suffered an
injury in fact,"
"there must be a causal connection between the injury
and the conduct
complained of, " and "it must be likely . . . that
the injury will be
redressed by a favorable decision." Id. At 560-61
(internal quotations
omitted).(5) The plaintiffs, as the party invoking federal
jurisdiction, bear the burden of establishing these
elements. Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998).
Failure
to establish any one deprives the federal courts of
jurisdiction to
hear the suit.;  Elizabeth Rivera v. Wyeth-Ayerst
Laboratories
(01-40122) (5th Cir. 2002)

<?>

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                                 -- http://tinyurl.com/2mn3jc

On 10/19/07, Donovan Hawkins <hawkinscephira.com> wrote:
>
>
> Alexander Terekhov wrote:
> >
> > Why not discuss here on *license discuss* forum
(not license approval
> > or some such)
> http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.h
tm
> > ruling by the United States Court of Federal
Claims...
>
> Because that is not the stated purpose of this list, as
has been pointed out
> many times. Try looking at more than the name of the
list...titles are
> generally non-normative.

While I think that there is an issue that the OSI has failed
to
provide any public statement about the actual purpose of the
list (all
we have are a few disparate mentions of things that are
supposed to be
discussed here and *no* statements about what the list is
actually
about other than its name), I would still qualify Alexander
as
off-topic here.

Furthermore, it seems that Alexander a) does not respond to
emails
from these conversations sent privately and b) brings up the
same
points over and over in confrontational ways (regardless of
general
agreement or lack thereof from this list with specific
points such as
whether licenses are contracts), a reasonable person could
easily
conclude that Alexander was simply trolling.

In short, I am not sure that Alexander's posts can be
fairly
categorized in any way other than to make analogies to
"BSD is Dying"
posts on Slashdot.

I would therefore recommend that if Alexander does not wish
to be
labeled as a troll, that he stop this sort of behavior.  We
cannot
read his mind and can only conclude such things based upon
his
actions.

Best Wishes,
Chris Travers

On 10/19/07, Donovan Hawkins <hawkinscephira.com> wrote:
[...]
> There was no automatic termination clause, so of course
a violation that is
> considered minor would not terminate the agreement. The
Plaintiff didn't
> even manually terminate the agreement, and the
Defendent had already begun
> to correct the problem in future releases.
>
> What does this have to do with real licenses like GPL
that containt
> automatic termination clauses? It is possible to
specify in an agreement
> that something normally considered minor is to be
treated as serious...I
> know you of all people won't object to my using
contract law for an example,
> so I would point to the classic "time is of the
essence" phrase as one such
> case.

Did you follow the link to Judge Saris' ruling?

Moglen made an attempt to trigger "automatic
termination" in MySQL case:

"Given my knowledge of the practices of programming and
the
requirements of the GPL, I concluded that the license
violation was
intentional. Whether intentional or not, any violation of
the GPL
results under §4 in a termination of the right to
redistribute. ...
Under GPL §4, I conclude, Progress Software Corp. lost the
right to
distribute MySQL when it distributed NuSphere MySQL
Advantage in a
fashion that violated GPL.
I declare under penalty of perjury and upon personal
knowledge that
the foregoing is true and correct. "

http://
www.gnu.org/press/mysql-affidavit.html

(and Bruce Perens even "predicted" that
"Moglen will get his
injunction" http://www.linux.
com/articles/21439)

but Moglen's attempt failed miserably:

"I am not persuaded based on this record that the
release of the
Gemini source code in July 2001 didn't cure the
breach."

http://pacer.mad.uscourts.gov/dc/opin
ions/saris/pdf/progress%20software.pdf

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                                 -- http://tinyurl.com/2mn3jc

On 10/19/07, Chris Travers <chris.traversgmail.com> wrote:
> On 10/19/07, Donovan Hawkins <hawkinscephira.com> wrote:
> >
> >
> > Alexander Terekhov wrote:
> > >
> > > Why not discuss here on *license discuss*
forum (not license approval
> > > or some such)
> > http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.h
tm
> > > ruling by the United States Court of Federal
Claims...
> >
> > Because that is not the stated purpose of this
list, as has been pointed out
> > many times. Try looking at more than the name of
the list...titles are
> > generally non-normative.
>
> While I think that there is an issue that the OSI has
failed to
> provide any public statement about the actual purpose
of the list (all
> we have are a few disparate mentions of things that are
supposed to be
> discussed here and *no* statements about what the list
is actually
> about other than its name), I would still qualify
Alexander as
> off-topic here.
>
> Furthermore, it seems that Alexander a) does not
respond to emails
> from these conversations sent privately and b) brings
up the same
> points over and over in confrontational ways
(regardless of general
> agreement or lack thereof from this list with specific
points such as
> whether licenses are contracts), a reasonable person
could easily
> conclude that Alexander was simply trolling.
>
> In short, I am not sure that Alexander's posts can be
fairly
> categorized in any way other than to make analogies to
"BSD is Dying"
> posts on Slashdot.
>
> I would therefore recommend that if Alexander does not
wish to be
> labeled as a troll, that he stop this sort of behavior.
 We cannot
> read his mind and can only conclude such things based
upon his
> actions.

Replied in private (off-band).

regards,
alexander.

P.S. All reasonable people having a habit of reading/posting
on/to
Slashdot are uber trolls, I think.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                                -- http://tinyurl.com/2mn3jc

Alexander Terekhov wrote:
> Why not discuss here on *license discuss* forum (not
license approval
> or some such)

This is ridiculous.  The list is not for general copyright
law
discussions, nor for general license discussions, nor for
general
contract discussions.  It exists so that licenses submitted
to OSI can
be discussed before approval.  There are obviously
occasional
discussions unrelated that topic, but they should be kept to
a minimum.

If people are unable or unwilling to accept that
license-discuss is for
discussing licenses submitted for approval, we may need both
a public
list charter and a rename of the list to e.g
license-approval-discuss
(which better reflects the intention).

Matt Flaschen

On 10/19/07, Matthew Flaschen <matthew.flaschengatech.edu> wrote:
> Alexander Terekhov wrote:
> > Why not discuss here on *license discuss* forum
(not license approval
> > or some such)
>
> This is ridiculous.  The list is not for general
copyright law
> discussions, nor for general license

add: contract

> discussions, nor for general

add: license

> contract discussions.  It exists so that

add: contract

> licenses submitted to OSI can be discussed before
approval.

Why not after? Is the discussion after approval not allowed
here?

regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                               -- http://tinyurl.com/2mn3jc

Quoting Matthew Flaschen (matthew.flaschengatech.edu):

> This is ridiculous.  The list is not for general
copyright law
> discussions, nor for general license discussions, nor
for general
> contract discussions.  It exists so that licenses
submitted to OSI can
> be discussed before approval.  There are obviously
occasional
> discussions unrelated that topic, but they should be
kept to a minimum.

Mr. Terekhov knows this, but finds the fact inconvenient. 
See also:
http://linuxmafia.com/~rick/lexicon.html#tactical-stu
pidity

On 10/19/07, Rick Moen <ricklinuxmafia.com> wrote:
> Quoting Matthew Flaschen (matthew.flaschengatech.edu):
>
> > This is ridiculous.  The list is not for general
copyright law
> > discussions, nor for general license discussions,
nor for general
> > contract discussions.  It exists so that licenses
submitted to OSI can
> > be discussed before approval.  There are obviously
occasional
> > discussions unrelated that topic, but they should
be kept to a minimum.
>
> Mr. Terekhov knows this, but finds the fact
inconvenient.  See also:
> http://linuxmafia.com/~rick/lexicon.html#tactical-stu
pidity

To some extent it's rather unfair game on my part to respond
to Mr.
Moen given his killfile filter (publicly known part), but I
still
defer to Mr. Bernstein : http://cr.yp.to/dis
tributors.html

and once again recommend:

http://cr.yp.
to/conferences/russia.html



regards,
alexander.

--
"To show the falsity of 'PJ''s claims, in most cases I
need look no further
than Groklaw itself. 'PJ' wants more journalists to use the
site as a
resource, so I'll do just that. Below are excerpts from my
story that 'PJ'
says are incorrect, followed by 'PJ''s characterization of
them, and my
response -- at times taken directly from Groklaw."

                              -- http://tinyurl.com/2mn3jc

Matthew Flaschen wrote:
> This is ridiculous.  The list is not for general
copyright law
> discussions, nor for general license discussions, nor
for general
> contract discussions.  It exists so that licenses
submitted to OSI can
> be discussed before approval.  There are obviously
occasional
> discussions unrelated that topic, but they should be
kept to a minimum.

Some discussions here may indeed be ridiculous (and I ignore
many of them),
but where do the OSI rules state those restrictions on list
content? Some
people, I fear, are being a little too censoring. Are you
trying to save me
from the trolls? Then implement better tools than email that
make it easier
to ignore things I don't want to hear.... 

Quite frankly, Alexander Terekhov has sent us lots of
interesting links that
are perhaps more interesting to some than having Matt or me
repeat our own
oft-stated opinions.  That
doesn't mean I agree with Alexander, or even
that I want to hear more from him. Censor not so that ye be
not censored.

/Larry


> -----Original Message-----
> From: Matthew Flaschen [mailto:matthew.flaschengatech.edu]
> Sent: Friday, October 19, 2007 11:06 AM
> To: License Discuss
> Subject: Re: rms1407.org claiming "licenses aren't
contracts" and that...
> 
> Alexander Terekhov wrote:
> > Why not discuss here on *license discuss* forum
(not license approval
> > or some such)
> 
> This is ridiculous.  The list is not for general
copyright law
> discussions, nor for general license discussions, nor
for general
> contract discussions.  It exists so that licenses
submitted to OSI can
> be discussed before approval.  There are obviously
occasional
> discussions unrelated that topic, but they should be
kept to a minimum.
> 
> If people are unable or unwilling to accept that
license-discuss is for
> discussing licenses submitted for approval, we may need
both a public
> list charter and a rename of the list to e.g
license-approval-discuss
> (which better reflects the intention).
> 
> Matt Flaschen