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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Wed, 25 Feb 2009 07:52:42 -0500
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
Rjack <> writes:

Neither you nor the SFLC understand the difference between a
"scope of permitted use" restriction and a "condition
precedent" to a grant of rights...

But the defendants' legal counsel do, and have apparently decided
that your argument doesn't apply.

Uhhh... how did you learn this? The only verifiable records I have
seen are voluntary dismissals.

And the CAFC, in the JMI case (Artistic license), ruled that it
was "outside the scope of the Artistic License to modify and
distribute the copyrighted materials without copyright notices
and a tracking of modifications from the original computer files." So the CAFC understands scope of use.

WTF does the Artistic License have to do with the GPL?
You're attempting to construct a Straw Man argument.

You should also keep in mind that the BusyBox cases were filed in
the Second Circuit. The CAFC's Artistic opinion is non-precedental
and conflicts with other Circuits. The Second Circuit law is totally

"Generally speaking, New York respects a presumption that terms of a
contract are covenants rather than conditions. See Grand Union Co.
v. Cord Meyer Dev. Co. , 761 F.2d 141, 147 (2d Cir. 1985) ("In the
absence of more compelling evidence that the parties intended to
create a condition, the negotiation provision must be construed as a
promise or covenant."); Warth v. Greif , 106 N.Y.S. 163, 165 (2d
Dep't 1907) ("The law favors covenants, rather than conditions
precedent."), aff'd , 193 N.Y. 661 (1908)";  Graham v. James, 144
F.3d 229 (C.A.2 (N.Y.), 1998).

And I'm sure the defendants' legal counsel do. Problem solved.

You also missed the simple fact that copyright law gives a
copyright owner several different rights, and different types of
conditions can apply to each of these rights as permitted by the
copyright owner to a licensee.

Why do say that I missed the "bundle of rights" concept concerning
Section 106? Where did I miss that concept?

You would have to consider each right granted to a licensee and
analyze it separately.

Rjack :)

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