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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Sun, 01 Mar 2009 10:55:35 -0500
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
Rjack <> writes:

Here's my citation:

...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....
[ no public link ]

That citation will not help you.

You are between a rock and a hard place here, and not all the law
 in the Second Circuit will save you.

If you argue that there is a contract and this contract continues
to be in effect, then the contract by its own terms causes permission to copy to automatically terminate as provided by the contract.

If you argue that a frog *assumes* he has wings then he probably
won't bump his ass . . .

An "automatic termination" clause in a contract will *not* be
enforced in the Second Circuit. The End! Fini! Its over!
The Court has so ruled -- don't complain to me. Complain to the
Second Circuit.

Any copying beyond that point is copyright infringement -- the GPL itself says so.

The court will ignore what the GPL says and instead rely on what The
Copyright Act of 1976 (As Amended) says in light of prevailing
federal and state law.

So the defendant is SOL if he continues to copy.

You other alternative if so argue that there is a contract and it's rescinded or abandoned. But then as soon as the contract is rescinded or abandoned, there is no longer any permission to copy.

I am arguing there is *NO* automatic rescission.

Any copying beyond that point is copyright infringement. The defendant is SOL again.

I think the reason for your confusion is that you took the idea termination of the right to copy, provided for in the GPL, and decided that that must mean rescission of a contract. At that point you went off on a wild tangent quoting irrelevant cases.

I think you're confusing conditions qualifying performance of a
contract with rescission of a contract but I can't be sure.

If any of your arguments were viable, we would have seen one or more defendants make those arguments.

That's a joke isn't it? :) :) :) :)

The SFLC files a *voluntary dismissal* before a defendant can ever
file Motion to Dismiss.

Rjack :)

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