Lawrence Rosen explains the CAFC Artistic decision - Linux

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Thread: Lawrence Rosen explains the CAFC Artistic decision

  1. Please take this to Judge Judy

    Micoshaft asstroturfing fraudster pounding the sock Rjack
    wrote on behalf of Half Wits from Micoshaft Department of Marketing:

    >
    > O



    Have you taken this to Judge Judy?



  2. Lawrence Rosen explains the CAFC Artistic decision


    Open source lawyer Lawrence Rosen announced his paper interpreting
    the impact of the CAFC's Artistic license decision in Jacobsen v.
    Katzer.

    http://www.crynwr.com/cgi-bin/ezmlm-...kdjcbikmbfcpmp

    "The CAFC decision also requires district courts to enforce open
    source license restrictions (another term like "condition" that has
    ambiguous meaning here)through the remedy of injunctive relief.
    Otherwise, "those types of license restrictions might well be
    rendered meaningless." [Pg. 1382]"

    http://www.rosenlaw.com/BadFactsMakeGoodLaw.pdf

    Rosen concluded that the CAFC "requires" district courts to enforce
    open source license under its appellate decision. He reached this
    conclusion despite the fact the CAFC while setting enbanc ruled:

    "Accordingly, we deem it appropriate here to decide non-patent
    matters in the light of the problems faced by the district court
    from which each count originated, including the law there
    applicable. . . The freedom of the district courts to follow the
    guidance of their particular circuits in all but the substantive law
    fields assigned exclusively to this court is recognized in the
    foregoing opinions and in this case."; ATARI, INC., v. JS & A GROUP,
    INC., 747 F.2d 1422 (Fed. Cir. 1984)(en banc).

    There is a about a 0.0001 percent chance that the district court in
    Jacobsen v. Katzer, upon remand, will follow the decision of the
    CAFC instead of the controlling law of the Ninth Circuit.

    Sincerely,
    Rjack

  3. Re: Lawrence Rosen explains the CAFC Artistic decision / In search forDiepenbrock v. Luiz case cited first by SCO and then CAFC


    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.)

  4. Re: Lawrence Rosen explains the CAFC Artistic decision / In search forDiepenbrock v. Luiz case cited first by SCO and then CAFC


    Alexander Terekhov wrote:
    >
    > 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.


    Courtesy of Californian Alan P. Petrofsky:

    ------
    M. H. DIEPENBROCK, Respondent, v. FRANK J. LUIZ, Appellant

    Sac. No. 1782

    Supreme Court of California

    159 Cal. 716; 115 P. 743; 1911 Cal. LEXIS 373


    May 2, 1911

    PRIOR-HISTORY: APPEAL from a judgment of the Superior Court of
    Sacramento County. Peter J. Shields, Judge.

    COUNSEL: J. Frank Brown, and C. E. McLaughlin, for Appellant.

    R. Platnauer, for Respondent.

    JUDGES: In Bank. Melvin, J. Sloss, J., and Lorigan, J., concurred. Shaw,
    J., concurring. Henshaw, J., and Angellotti, J., concurred.

    OPINION BY: MELVIN

    OPINION

    This cause was decided by the district court of appeal of the third
    appellate district, and a rehearing was granted in order that we might
    further examine the authorities applicable to the lease involved in the
    litigation. After careful examination of the authorities cited and of
    the arguments of counsel presented in their briefs, we have adopted the
    opinion of the district court of appeal, written by Mr. Justice Burnett,
    which is as follows: --

    "The action, based upon a lease of agricultural lands from one R. W.
    Brown to defendant, is to recover the rental which under the terms of
    said lease became due on November 15, 1906. The lease was executed on
    November 11, 1905, and on November 10, 1906, Brown conveyed the premises
    together with 'the reversion and reversions, remainder and remainders,
    rents, issues and profits thereof,' to plaintiff.

    "The main controversy is over the proper construction of the following
    clause in said lease: 'It is agreed by and between the parties hereto,
    that the party of the first part may sell the demised premises at any
    time during the said term. Whenever sold this lease shall cease and be
    at an end, provided that the party of the first part shall then pay to
    the party of the second part, for all improvements placed upon the
    demised premises to the time of such sale, including the cost of all
    ditches, built thereon by the latter and all crops then growing thereon,
    the value thereof to be agreed upon by the parties hereto, and if they
    do not agree the value thereof shall be fixed by two disinterested
    persons selected for that purpose, by the parties hereto, and if they
    fail to agree by a third person selected by them for that purpose, and a
    majority of the three shall fix the value of such improvement, and the
    cost of such ditches, and the value of such crops, and as so fixed shall
    be paid by the party of the first part to the party of the second part.'

    "It is the contention of appellant that the lease was terminated the
    instant a bona fide sale was effected by the lessor, while respondent
    claims that the termination was subject to the further condition of
    payment of the value of the improvements. In other words, the parties
    differ as to whether the clause providing for said payment constitutes a
    covenant or a condition. Appellant insists that in harmony with the rule
    of construction that every word is to be understood in its ordinary and
    popular sense, we may adopt any of the following definitions of provided
    as given by Webster, to wit: 'On condition'; 'by stipulation'; 'with the
    understanding.' Substituting these various definitions for provided he
    argues that 'with the understanding' harmonizes perfectly with the text.
    'It creates no discord, and does not limit the meaning and effect of
    that which precedes or succeeds it, much less nullify and render
    meaningless, important portions of the paragraph in which it is found.
    On the other hand the substitution of the definition 'upon condition'
    creates inconsistency, inharmony and discord. It practically eliminates
    succeeding sentences where careful provision is made for the
    ascertainment and payment of the amount while its effect on the
    preceding sentence 'whenever sold this lease shall cease and be at an
    end' is to convert an absolute, positive and emphatic declaration into a
    qualified statement, the effect of which depends upon the will of one of
    the parties jointly making it.'

    "It is undoubtedly true, as claimed by appellant, that stipulations in a
    contract are not construed as conditions precedent unless that
    construction is made necessary by the terms of the contract. ( Deacon v.
    Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140 Cal.
    318, [73 Pac. 966].) There are also well considered cases holding that
    provided does not necessarily impose a condition. In Hartung v. Witte,
    59 Wis. 285, [18 N. W. 177], it is said: 'But the words, "upon the
    express condition," as here used, or the words "if it shall so happen"
    or "provided however" and the like do not always make a condition, and
    it is often a nice question to determine whether it is a condition or a
    covenant and courts always construe similar clauses in a deed as
    covenants rather than as conditions, if they can reasonably do so.' (2
    Washburn on Real Property, 4.)

    "In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
    'The word provided though an appropriate word to constitute a common law
    condition does not invariably and of necessity do so. On the contrary,
    it may give way to the intent of the party as gathered from an
    examination of the whole instrument, and be taken as expressing a
    limitation in trust.'

    "Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
    R. A. 380], it is said: 'While the words "provided nevertheless" and
    "upon the following conditions" are appropriate words to create a
    condition, they do not of necessity create such an estate. They and
    similar words, will give way when the intention of the grantor as
    manifested by the whole deed, is otherwise, and they have frequently
    been explained and applied as expressing simply a covenant or a
    limitation in trust.'

    "Indeed, the decisions are uniform to the point that, while ordinarily
    the word 'provided' indicates that a condition follows, as expressed in
    Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], 'there is no
    magic in the term, 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.'

    "Respondent, on the contrary, quotes from Rich v. Atwater, 16 Conn. 409;
    Robertson v. Caw, 3 Barb. (N. Y.) 410, and De Vitt v. Kaufman Co., 27
    Tex. Civ. App. 332, [66 S. W. 224], to the effect that the word
    'provided' means 'on condition' and is the appropriate word for creating
    a condition precedent.

    "It is admitted by appellant that it is an apt word for that purpose,
    but he contends that to so interpret it would be against the evident
    intention of the parties.

    "Reflecting, however, that the lease was for the term of five years and
    that valuable improvements were likely to be made by the lessee and that
    the lessor wanted to be in a position to avail himself of any favorable
    opportunity to sell the premises to advantage, what is more reasonable
    than the conclusion that the lessor desired to retain an option to
    terminate the lease if the would-be purchaser should demand that the
    premises be conveyed free from encumbrance? Of course, it is only in
    view of such a contingency that there would be any reason for leaving
    the lessor a choice as to the payment for the improvements. It would
    hardly be supposed that he was so generous as to choose to pay unless
    the exigency of a profitable sale made it to his advantage to do so. On
    the other hand, the lessee would hardly be willing to have his valuable
    leasehold interest destroyed at any time by a sale without at least some
    protection for his outlay on the property. And he might, quite
    naturally, desire more security than the mere personal covenant of the
    lessor to pay him for his improvements. He would, therefore, as a
    reasonable man, insist that if the lessor is to have the privilege of
    selling the property at any time and desires thereby to terminate the
    lease, it must be upon the condition that he pay for the improvements.
    It would immediately occur to the parties, however, that in case the
    improvements are to be paid for some question might arise as to their
    value and for the purpose of determining this the judgment of two -- and
    in case of their disagreement -- of three arbitrators, it might be
    considered expedient to invoke. If the parties had these conditions in
    mind would they not with sufficient accuracy express their intention by
    declaring that 'the lessor may sell the demised premises at any time
    during said term. Whenever sold the lease shall cease and be at an end
    provided that the party of the first part shall then pay to party of the
    second part the value of the improvements placed thereon by said party
    of the second part to be agreed upon by said parties and if they cannot
    agree, said value to be determined by two disinterested parties and in
    case of their disagreement a third party shall be selected and a
    majority of the three shall fix the value of the improvements to be paid
    by said party of the first part?' This is substantially the language
    used, and to adopt the construction of appellant, we must depart from
    the primary meaning of the word provided and hold that the parties used
    it in a secondary sense. The argument of appellant is interesting and
    ingenious, but it cannot change the fact that, attributing the usual and
    ordinary signification to the language of the parties, a condition is
    found in the provision in question. Nor, if we bear in mind the
    contingency already suggested and implied in the terms employed, does
    the conclusion of the learned trial judge derogate from the force of the
    seemingly positive promise to pay for the improvements.

    "But accepting appellant's interpretation, how does the case appear? If
    the lease was terminated by the sale, it was the duty of defendant to
    surrender the premises. It is indeed so provided in these words: 'At the
    end of said term or early ending of this lease the party of the second
    part shall surrender possession of the demised premises in good order
    and condition.' It is the duty of the lessor to pay for the
    improvements. The lessor failed to pay and the lessee continued in
    possession. It is admitted that the lessor's covenant was a personal
    one, it was not made subject to a lien upon the land, nor upon
    appellant's theory was the lessee authorized to remain in possession
    until he was paid for the improvements. The lessee's redress, therefore,
    for the violation of the lessor's promise is a personal action against
    the latter for the value of the improvements. The lessee occupied and
    used the premises to his profit by virtue of no other right than that
    created by the lease until after the payment of the rent became due --
    indeed, until the end of the year. It is true that another lease was
    executed by plaintiff to defendant and his son, but this was on November
    17th -- two days after said rent was due -- and it was not to take
    effect until December 1st. There can be no doubt, then, that defendant,
    having occupied the premises for the whole year, was burdened with the
    obligation to pay for the use thereof. The only question that could
    arise would be whether he should pay the rent prescribed in the lease or
    what the use of the premises was reasonably worth. This we need not
    determine, as, in another view, assuming the termination of the lease by
    the sale, it would seem that defendant cannot escape the payment of the
    rent. As already seen, the said sale occurred only five days before the
    rental was to be paid and less than a month before the expiration of one
    year of occupancy by said lessee. This fifteen hundred dollars was the
    balance of the annual rental, and since there was no agreement as to any
    apportionment or abatement of rent, in the absence of any statutory
    provision, in case of termination of the lease before the rent was due,
    the rule would be as stated in section 389 of Taylor's Landlord and
    Tenant: 'It is well settled that in all cases of periodical payments,
    accruing at intervals, and not de die in diem, there can be no
    apportionment, for rent will not be apportioned in respect of time,
    unless by force of a statute or of some special provision of the lease.'
    But section 1935 of the Civil Code provides the rule in this state as
    follows: 'When the hiring of a thing is terminated before the time
    originally agreed upon, the hirer must pay the due proportion of the
    hire for such use as he has actually made of the thing, unless such use
    is merely nominal, and of no benefit to him.' As has already appeared,
    the defendant actually had use of the property for the entire year under
    the original lease, but if the computation should be limited to the date
    of the sale it amounts practically to the same thing, and, under the
    evidence, it cannot be said that the use was merely nominal or of no
    value to defendant.

    "It was rightly held, we think, that the claim for the rent was
    transferred to plaintiff and therefore he was the proper party to
    institute the action. Indeed, the evidence shows that defendant did not
    object to paying the rent to plaintiff but he insisted that he should be
    reimbursed by the said plaintiff for the value of the improvements. But
    this cannot be urged as an offset to plaintiff's claim since plaintiff
    did not undertake to pay therefor. If there be anything due for said
    improvements it must be from the original lessor.

    "The judgment is affirmed."
    ------

    To use that case to find any conditions precedent in the Artistic
    License is utter idiocy. Uh CAFC's drunkards.

    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.)

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