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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Tue, 24 Feb 2009 10:25:54 -0500
User-agent: Thunderbird (Windows/20081209)

amicus_curious wrote:

"Rahul Dhesi" <> wrote in message news:go0i73$nuv$
Rjack <> writes:

[ still arguing promissory estoppel ]

How do you get promissory estoppel without a promise?

"2. You may modify your copy or copies of the Program or any portion of it...

Permission alone is not a promise. What is the writer of the GPL promising to do or not to do? --
The leap here is the phrase "thus forming a work based on the Program".

"Permission" is a voluntary waiver of a legal right. In the context
of copyright tort law, a "permission" constitutes a promise not sue
for copyright infringement:

"Implicit in that permission was a promise not to sue for copyright
infringement--a promise that at least one court has found to be the
essence of a nonexclusive license. See In re CFLC, Inc., 89 F.3d
673, 677 (9th Cir.1996) ("[A] nonexclusive patent license is, in
essence, 'a mere waiver of the right to sue' the licensee for
infringement.") (quoting De Forest Radio Telephone & Telegraph Co.
v. United States, 273 U.S. 236, 242, 47 S.Ct. 366, 368, 71 L.Ed. 625
(1927))."; Maxwell v. Veeck, 110 F3d 749 (11th Cir. 1997).

The waiver of a legal right also constitutes consideration for a

" 'In general a waiver of any legal right at the request of another
party is a sufficient consideration for a promise.' (Parsons on
Contracts, 444.)"; Hamer v. Sidway 124 N.Y. 538, 27 N.E. 256 (Court
of Appeals of New York, 1891)

Rjack :)

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