Re: Copyright Misuse Doctrine in Apple v. Psystar

[David Kastrup]

Rjack <user@example.net> writes:

> Rahul Dhesi wrote:
>> Rjack <user@example.net> presents another irrelevant citation:
>>
>>> "Generally speaking, New York respects a presumption that terms of a
>>> contract are covenants rather than conditions....
>>
>> The GPL is very clear that its conditions are conditions.  From version 2,
>> and note the parts that I have capitalized:
>>
>>   Any attempt otherwise to [do other things] will AUTOMATICALLY
>>   TERMINATE your rights under this License.
>>
>>   If... conditions are imposed on you...that contradict the CONDITIONS
>>   of this License, they do not excuse you from the CONDITIONS of this
>>   License.
>
> "[A] breach by one party does not automatically result in rescission
> of a contract.

There is no contract since that requires two parties' assent.  There is
just a unilateral conditional permission by the copyright holder.  If
you meet the conditions, you can use the permission.  Your choice.

A contract, in contrast, is an agreement between two parties.  If terms
of the contract are not met, a party is in violation and can be sued for
compliance.  You can't sue somebody to comply with the GPL since he
never agreed to do so in the first place.  But you can sue for copyright
breach: he is without a valid license if he does not meet the terms of
the GPL.

-- 
David Kastrup