Alexander Terekhov wrote:
Note that the GPLv2 does not acknowledge First Sale when it states
"However, nothing else grants you permission to modify or distribute
the Program or its derivative works."
The GPL (and Herr Professor Moglen) is attempting to redefine
what a "condition" means with respect to a copyright license. A
"condition" is not a legal term concerning *formation* of a
contract but refers to *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 ยง 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."; RT Computer Graphics v, United
States,(USCFC 1999.)
http://www.uscfc.uscourts.gov/Opinions/Horn/99/RTCOMP.htm
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