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Re: Copyright Misuse Doctrine in Apple v. Psystar

From: David Kastrup
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Mon, 02 Mar 2009 18:16:24 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Alexander Terekhov <> writes:

> David Kastrup wrote:
> [...]
>> > I think Rjack has a valid point that a court might well treat the GPL as
>> > a contract in such a case.
>> Huh?  You can't be held to a contract you did not sign.
> Spitting coffee all over my two monitors. Dak, dak, dak, you
> #%#%&$#%&$#.
> Verträge können schriftlich, mndl. oder durch konkludentes Verhalten
> (in etwa: bestätigendes Verhalten) geschlossen werden.

"Konkludentes Verhalten" certainly can't be relevant when nothing in
your behavior indicates a willingness to enter into a contractual

For example, if you pay with a credit card and your payment bounces
later, then contractual obligations according to AGB can be demanded
later because "konkludentes Verhalten" definitely signaled your
agreement to the implied contractual obligations put forward by the
shop's "Allgemeine Geschäftsbedingungen".  There are close limits to
what AGB can entail: they must not contain any undue surprises but
remain within normal expectations.  Lots of court decisions about what
constitutes proper AGB, the main base for such contracts.

Anyway, the bounced payment is always a cause for civil action, and
sometimes for fraud (if you knew that the payment would bounce or
doctored the credit card).

In contrast, if you just shoplift without paying, "konkludentes
Verhalten" can't be stated.  You can be sued for default damages and
criminal charges then.

In contrast, the GPL does not meet the preconditions for AGB, contracts
that you can enter into without actually perusing or signing them.

So in short: you have no clue.  Again.  Hardly surprising.

David Kastrup

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