Subject: Re: [RFC] Serious Open Source (SOS) License -- Injunctive Relief clause
From: wtfpl user <wtfpl.user@googlemail.com>
Date: Tue, 17 Mar 2009 05:09:43 +0100

Larry Rosen states:

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

"A "condition," on the other hand, is a limitation on the scope of the
copyright license itself, and courts should treat its breach as
copyright infringement."

My sources tell a different story:

A copyright license/rights grant contract may contain covenants,
conditions precedent, conditions concurrent, conditions subsequent,
and scope-of-use limitations. A court examines a copyright license
under applicable state contract law, and to an extent, the common law
of the Federal Circuit in which the copyright license is interpreted.

One of the thorniest issues is confusion between language used
concerning "conditions precedent" and "scope-of-use" limitations. Both
concepts are commonly referred to as simply "conditions" which causes
much, much confusion.

Many lawyers, including judges, confuse these terms and use them
interchangeably. A scope-of-use limitation is descriptive language
limiting how an exclusive right can be used. A scope-of-use limitation
is not a term of contract construction, it is an "in rem" limitation
that attaches to personal property. Exceed the scope (field) of use
limitation and it is copyright infringement regardless of contract
provisions. If you have a copyrighted drawing of Whiffy the Cat and
you license the RIGHTS GRANT as "You may use the drawing on silk
screened t-shirts" that is a "field (scope) of use" limitation. If you
then draw Whiffy the Cat on dresses instead, you are guilty of
exceeding the "field (scope) of use" limitation on the RIGHTS GRANT.
YOU ARE GUILTY OF COPYRIGHT INFRINGEMENT but that has nothing to do
with CONDITIONS (precedent/concurrent/subsequent).