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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 19:36:45 -0500
User-agent: Thunderbird (Windows/20081209)

Hyman Rosen wrote:
Rjack wrote:
Huh? What the hell does your cited case have to 17 USC 301(a)?

Nothing at all, since federal preemption of copyright has absolutely nothing to do with the GPL. The cited case demonstrates that even though there was a contract between the rights holder and the user, when the user violated the contract, the court allowed a claim for copyright violation, not just breach of contract. This is contrary to the claims made by GPL doubters, who often incorrectly state that when the GPL is not honored it is not copyright violation but just a breach of contract. (And then go off into further error.)

They are correct Hymen. Section 2(b) is an *illegal* contractual term.

Neither you nor the SFLC understand the difference between a "scope
of permitted use" restriction and a "condition precedent" to a grant
of rights -- the former is a direct limitation "in rem" and the
latter is a term of contract construction. It doesn't make any
difference whether sec. 2(b) is a covenant or a condition -- it is
sure as hell not an "in rem" limitation on a grant of rights -- and
therefore the term 2(b) is preempted by 17 USC 301(a) which forbids
new "in rem" copyrights (Stallman's copyleft) created by
*contractual terms*.

1) "You may use my copyrighted picture only on women's blouses" is a
direct "in rem" scope of use restriction -- use on anything else is
*copyright infingement*. Period.

2) "You may use my copyrighted picture provided that you first pay
me 100 dollars" is a condition precedent -- it clearly says if no
payment *first* then no copyright permission.

Notice that a condition can't rest on the same copyright permission
you wish to condition. In that case you can't get the permission to
satisfy the condition because the condition can't be satisfied
without permission. This result is called an impossible condition in
contract construction and is strictly construed *against* the
drafter. This is another mistake that is made in sec. 2(b) of the GPL.

Rjack :)

Rjack :)

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