Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Rahul Dhesi wrote:
> Rjack <user@example.net> writes:
>
> > 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....
>
> You are still mixing up the concepts of termination and 
> rescission.
>
> Here's a nice link from Australia (which follows English common 
> law same as in the US) that explains the difference:
>
> http://law.anu.edu.au/COLIN/Lectures/frust.htm
>
> And also, note that the GPL talks about termination of a person's
>  rights under the GPL, not termination of a contract.

Here's a nice citation from the Second Circuit that demonstrates
that a "termination" of the grant of rights in a copyright license
is considered as a "rescission". I'd forget Australia -- it's not in
the Second Circuit where its decisions the precedent:

"Finally, James argues that even if the nonpayment of royalties and
the removal of James's authorship credit amount to no more than
breaches of covenants, these breaches terminated the license. . .
One party's breach does not automatically cause [rescission] of a
bilateral contract.") (emphasis omitted). Similarly, although James
sometimes characterizes the licensing agreement as abandoned,
abandonment of a contract can be accomplished only through mutual
assent of the parties, as demonstrated by positive and unequivocal
conduct inconsistent with an intent to be bound. See  Armour & Co.
v. Celic , 294 F.2d 432, 435-36 (2d Cir. 1961). 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."; GRAHAM v JAMES 144 F.3d 229 (2d Cir. 1998).

Sincerely,
Rjack :)