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Re: Psystar's legal reply brief in response to Apple

From: David Kastrup
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:57:29 -0000
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/24.0.50 (gnu/linux)

Alexander Terekhov <> writes:

> ZnU wrote:
> [...]
>> > Once a copy is made under the GPL, it falls under "first sale" on the
>> > only cause of action is the contract breach, not copyright infringement.
>> I'm not sure I'm exactly grasping your point. Yes, the GPL, once
>> accepted, is a contract. But it's a contract backed up by the force of
>> copyright law, because if you don't accept the contract you have no
>> right to distribute additional copies of the software.
> You have no right to make a copy in the first place so you have to
> accept the license contract in order to make a copy.
> But after a copy has been made under the license contract, that copy
> falls under 17 USC 109 (which limits exclusive distribution right of the
> copyright owner) and the only cause of action regarding non-compliance
> with the distribution requirements is a contract breach claim, not
> copyright infringement claim.
> The situation is exactly the same as with legally downloaded copies:

A copy made without an intent or attempt of heeding the conditions of
the copying permission does not count as "legally downloaded" with
respect to fair use.

Courts are not stupid.  There is no law against pulling a trigger, but
there is a law against killing people.  And you can't plead "sure, I
pulled the trigger, but I am not responsible for the inertial law that
carried the bullet to its target".  When two acts form one unit of
intent and action, the courts are intelligent enough to join them.

David Kastrup

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