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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Sat, 28 Feb 2009 06:55:37 -0500
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
David Kastrup <> writes:

Rjack <> writes:

Also there is no "evasion of an interpretation of the GPL" since the GPL is not even under dispute. It would only be under dispute if the defendants claimed compliance as a defense....
Would the GPL be construed as a contract and interpreted under state law?

Do you even read what you are replying to? If the defendant does not claim compliance, the GPL is not relevant to the case.

I think Rjack has a valid point that a court might well treat the
 GPL as a contract in such a case.

But the defendant, if he loses, still loses big, as shown below.

If the defendant argues that the plaintiff waived copyright, the
plaintiff will point out that if there was a waiver, it was a waiver only for a limited time. As soon as the license (or contract, if you call it that) automatically terminates, there is
 no GPL in effect any more and there is no contract in effect any
more and there is no waiver in effect any more. If any further copying occurs outside fair use, then all you have is pure copyright infringement.

There is no "automatic termination" in the Second Circuit:

“. . . rescission of the contract only occurs upon affirmative acts
by the licensor, and a breach by one party does not automatically
result in rescission of a contract. Id. at 238 (”New York law does
not presume the rescission or abandonment of a contract and the
party asserting rescission or abandonment has the burden of proving
it”).”; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL
1238716 (E.D.N.Y.April 30, 2007).

At this point the plaintiff gets a permanent injunction and the defendant is SOL.

Rjack :)

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