Azzalino

Opinion by Judge B. FLETCHER; Concurrence by Judge KOZINSKI.

In this copyright case, we must decide an issue unaddressed by our prior deci *824 sions: Which law, state or federal, governs the creation of an implied, nonexclusive copyright license? We conclude that while federal law answers the threshold question of whether an implied, nonexclusive copyright license can be granted (it can), state law determines the contract question: whether a copyright holder has, in fact, granted such a license. Construing California law and applying it to the facts of this case, we conclude that Foad Consulting Group, Inc., gave an implied, nonexclusive license to the predecessor in interest of defendants Canyon Partners, LLC, and Agra, LLC, to reproduce and adapt the revised project plan at issue in this case and to publish the subsequent work, all in conjunction with defendants’ development of a shopping center. Because we also conclude that defendants’ modification and use of the plans did not exceed the scope of the implied license, we affirm the district court’s grant of summary judgment to defendants.

Background

In August 1995, GenCom, Inc., hired the engineering firm Foad Consulting…

concurring:

The parties will no doubt be surprised by the majority opinion, as it decides a question they neither briefed nor argued, and that wasn’t even raised below. This is a dangerous thing for a court to do, and wholly unnecessary. The case can and should be decided on the issues presented by the parties. Because I cannot join in the court’s analysis, I concur only in the result.

I

A. The majority opens with the following question: “Which law, state or federal, governs the creation of an implied, nonex-elusive copyright license?” Maj. Op. at 824. It is an interesting question that deserves exploring in the right case. It is also a difficult question that bears some analysis. Instead, the majority cites Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir.1990), and then proceeds to apply state law. Given the importance of the question, one might have hoped for some explanation of how the majority got there.

As best I can tell, the majority assumes that anything that is called a contract-including an implied contract-must be governed by state law. But not every implied contract is, in fact, a contract. Certainly, some implied contracts are governed by state law. Those…