Subject: RE: Strong Court Ruling Upholds the Artistic License (fwd)
From: "Marc Whipple" <MWhipple@itsgames.com>
Date: Fri, 15 Aug 2008 14:59:33 -0500

 Fri, 15 Aug 2008 14:59:33 -0500


-----Original Message-----
From: Ben Tilly [mailto:btilly@gmail.com] 
Sent: Friday, August 15, 2008 2:19 PM
To: dtemeles@nvalaw.com
Cc: license-discuss@opensource.org
Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)

On Fri, Aug 15, 2008 at 11:48 AM,  <dtemeles@nvalaw.com> wrote:
>> If the CAFC's position is indeed the law of the land, then
>> any cause of action relating to a breach of a provision in a license
>> agreement that merely mentions the word "condition" (or some synonym
>> thereof), or that could conceivably be interpreted as a condition
precedent,
>> will need to be decided by a federal court.  Otherwise, the parties
run the
>> risk of going through a full trial in state court only to find that
the
>> state court has no jurisdiction to even hear the matter in the first
place
>> because the breach in fact constitutes an infringement.

>That is a technical matter that I have no opinion on.

[Marc Whipple] I am a lawyer, but this is not legal advice. Always
consult an attorney licensed in your jurisdiction and familiar with the
relevant law before making legal decisions.

I think you probably mean, "I do not consider myself able to offer an
informed opinion on this point," but the way it was phrased sounds a
little dismissive. If you didn't mean it that way, accept my apology if
I've over-read your statement.

That being said, calling this a "technical matter" is oversimplification
to a rather radical degree. As an attorney who often walks the line
between questions of Federal and State jurisdiction it was one of my
first concerns when I read a summary of the decision this morning. The
utter pre-emption of matters even remotely concerned with the Copyright
Act means that this is a question of the utmost importance to anyone who
has anything to do with such licenses. I haven't read the full decision
yet, and so won't comment on whether the assertion the OP makes is
accurate, but if it is, he is right to be concerned. Among other things
it would mean that the enforcement of OS licenses just got, at the bare
minimum, a lot more expensive.

MW