1. Michael Donnelly

    There is a sharper side of that condition v. covenant language as well that you might want to consider. Since the drafter of the contract can choose which parts of the agreement are conditions, he can create an action of copyright infringement from any breach. This can grant incredible powers to authors of EULAs by allowing them to litigate unwanted add-ons or competition out of business very easily. I'm sure you've seen some of the discussion around my particular case (MDY v. Blizzard), as it's been discussed by Patry and a bunch of others.

    It seems to me there are few ways to navigate the problem and provide both strong rights for open source licenses but prevent the average consumer from becoming a copyright infringer for breaking the rules of a video game.

    The only method I can see as an armchair lawyer is through section 117, which short-circuits the RAM-copy argument for people using their own software. However, people have to own their software and not be licensees, which opens another can of worms.

    Still, I think any discussion of Jacobsen is incomplete without also considering the anti-competitive aspects of conditions giving rise to copyright infringement in EULAs, particularly when it is a condition that is otherwise completely unrelated to copyright law, such as stating which programs can be run at the same time as a product.

  2. Michael: Very insightful comments. I of course had given some thought to draconian EULAs, but had never really combined that notion with open source considerations. Thanks for contributing this improvement to the "source code" of my essay!

  3. This rabbit hole goes deep. The Artistic License is a "standard" open source license, so there were no drafting choices here. Jacobsen just got lucky.

    I have also found that code libraries have been uploaded to open source directories and placed under Artistic License *and* GPL. In several cases I found the same code in two directories, in one place under Artistic and GPL and in the other under Artistic *or* GPL.

    Jacobsen v. Katzer is the rare case that went to trial. My own conclusion is that most free open source licensing issues can not be happily resolved by the courts.

  4. I think that your "plausible explanation" for the contrary holding in Graham is actually right on the money, not merely plausible…

    In Graham, the court noted that under NY law, there is a presumption that contract terms are covenants, rather than conditions. Citing Warth, the Graham court noted that "in the absence of more compelling evidence that the parties intended to create a condition, the negotiation provision must be construed as a promise or covenant." But Jacobsen *had* that compelling evidence: the "provided that" language. Good thing, too. That should be a lesson in legal writing classes!

    Jay's right, Jacobsen certainly got lucky… And so did the open source community.

  5. Alexander

    The CAFC ruled:


    "Under California contract law, "provided that" typically denotes a condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)"

    The CAFC further ruled:

    "The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes…"

    How on earth can "disclosure and explanation of changes" come before (be a condition precedent) to the license grant?

    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)).

    "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.'

    The Restatement (Second) of Contracts Article 224 states:

    "Condition Defined:

    A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due."

    Obviously an "event" that depends on performance of a contract cannot occur *before* performance of the contract becomes due. This result is called an impossible condition in contract construction and is strictly construed *against* the drafter.

    The ruling of the CAFC reminds me of this limerick ridiculing the theory of special relativity:

    There was a young lady named Bright,

    Whose speed was far faster than light.

    She went out one day,

    In a relative way

    And returned the previous night!

    – Arthur Reginald Buller

    See also:




  6. d f

    The artistic license may be "standard," but it is relatively uncommon and widely regarded as, let's say, idiomatic. Despite the relatively sweeping language in the CAFC opinion, for lots of the reasons noted above I'd be hesitant to think this case extends too far beyond its facts.

    Personally I'd like to see a presumption added to the copyright law that OSS licenses are enforceable in copyright, but I can't see anyone caring enough to get that passed. And the argument over what would qualify would probably be quite entertaining!

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