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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 18:09:20 -0500
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
Rjack <> writes:

Unfortunately, if you wish to refute my cited authority of Graham v James you'll have to do it on your own dime. The case *clearly* refutes "automatic termination" due to breach so either you haven't read it or are incapable of understanding it. Alexander Terekhov also directed you to the same case. TRY

The opinion that you so triumphantly cite states: "Graham and James orally agreed to the licensing agreement and did not clearly delineate its conditions and covenants."

A case about an unclear oral agreement -- that's all you can come
 up with?

"But the existence of a license was essentially uncontested in this
case. James affirmatively alleged in his answer and counterclaim (in
support of his breach of contract action) that "[o]n or about May
1991, defendant orally agreed to grant plaintiff the right to use
his computer program on CD-ROM disks in exchange for a fee of $1,000
for each CD-ROM version issued and a $1.00 fee for each copy of such
version sold by plaintiff."; Graham link (supra).

The fact the agreement was initially oral is irrelevant. The license
was stipulated in writing in the pleadings. You are using a red
herring argument -- complaining about the form of license -- to
evade discussing "automatic termination" but it is not working.

After all these repeated citations, you couldn't find even one case in which clear written "conditions" language was held to not
 create conditions?

Not even one case?

The CAFC was well aware of this case and I will go with the CAFC's analysis over yours.

Try that 'CAFC' line of authority in the Second Circuit where the
Cisco case is filed and the district judge would laugh your butt out
of court.

The real moral of the case that you cite is a different one:

An oral agreement isn't worth the paper it's written on.

A stipulated oral agreement is no longer "oral".

It's *not* automatic rescission. Read it and weep Rahul:

"[S]uch rescission did not occur automatically without some
affirmative steps on James's part. 22A N.Y. Jur. 2d Contracts  ยง 497
(1996) ("The failure of a party to perform his part of a contract
does not per  se  rescind it. The other party must manifest his
intention to rescind within a reasonable time."); see  also  Jacob
Maxwell, Inc. , 110 F.3d at 753 ("Such a breach would do no more
than entitle [the composer] to rescind the agreement and revoke its
permission to play the song in the future, actions [the composer]
did not take during the relevant period. One party's breach does not
automatically cause [rescission] of a bilateral contract.")";:
Graham v. James, 144 F.3d 229 (C.A.2 (N.Y.), 1998)

Rjack :)

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