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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Thu, 12 Feb 2009 10:47:18 -0500
User-agent: Thunderbird (Windows/20081209)

Hyman Rosen wrote:
Rjack wrote:

Notice the words, "before performance under a contract becomes due"? Section 5 of the GPL is legal nonsense.

The GPL is a license, not a contract.

"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995).

"Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006).

Two of the highest level federal courts of appeal unequivocally
disagree with you. The Supreme Court of the United States also
disagrees with you:

"Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; De Forest Radio
Tel. & Tel. Co. v. United States, 273 U.S. 236, United States
Supreme Court (1927).

How are you going to get a US federal court to enforce your
copyright license "that's not a contract"? Do you suppose they'll
overrule themselves on the strength of your belief alone?

Rjack :)

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