Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Rahul Dhesi wrote:
> Rjack <user@example.net> writes:
>
> > > Here's a nice link from Australia (which follows English 
> > > common law same as in the US) that explains the difference:
> > >
> > > http://law.anu.edu.au/COLIN/Lectures/frust.htm
> ...
>
> > Here's a nice citation from the Second Circuit that 
> > demonstrates that a "termination" of the grant of rights in a 
> > copyright license is considered as a "rescission". I'd forget 
> > Australia -- it's not in the Second Circuit where its decisions
> >  the precedent...
>
> I'm beginning to see how it could happen that you could quote so 
> many cases, and still get fundamental concepts (e.g. standing vs 
> subject matter jurisdiction, or termination of a license or 
> contract vs rescissoin of a contract) so wrong.

I see you are still confused about contract termination. Contract
termination is a general concept. In general a contract may be
*terminated* by reasons of *rescission*, *breach*, or *impossibility
of performance*.

> The quoted text above indicates the problem. You aren't using any
>  knowledge of the common law of contracts, derived from England 
> and further developed in the US by state courts.
>
> Instead, you are taking isolated Circuit court cases and treating
>  them as if they define state contract law terms.  That's not 
> going to give you any useful results.  The Circuits don't define 
> state contract law, they merely apply it. And in doing so, they 
> don't define contract law terms, they merely apply them.
>
> Essentially all of the contract law in the US comes intact from 
> England, with some further development by the state courts in the
>  US. Not the federal courts, but the state courts.
>
> This is why you are gravely mistaken when you essentially argue 
> that a common law term is better understood from a Second Circuit
>  opinion than from a law summary from Australian contract law 
> professor.
I never argued that.

The GPL suits are filed in the Second Federal Circuit in New York
State where the district courts reside. The federal district courts
will apply New York state common law as they feel the New York state
courts interpret that common law. It is how the federal courts
interpret the *state court decisions* that matters. They are guided
in this matter by the Second Circuit Court of Appeals.

> What you can do, however, is look for a Second Circuit case that 
> includes a general discussion of the topic and provides multiple 
> citations to state law. And then you can quote that. But I 
> haven't seen you do that.

Here's my citation:

"Finally, James argues that even if the nonpayment of royalties and
the removal of James's authorship credit amount to no more than
breaches of covenants, these breaches terminated the license. . .
One party's breach does not automatically cause [rescission] of a
bilateral contract.") (emphasis omitted). Similarly, although James
sometimes characterizes the licensing agreement as abandoned,
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. See  Armour & Co.
v. Celic , 294 F.2d 432, 435-36 (2d Cir. 1961). New York law does
not presume the rescission or abandonment of a contract and the
party asserting rescission or abandonment has the burden of proving
it."; GRAHAM v JAMES 144 F.3d 229 (2d Cir. 1998).

Had you actually read the citation you have seen, "New York law does
not presume the rescission or abandonment of a contract and the
party asserting rescission or abandonment has the burden of proving
it."
> And the reason I picked that particular Australian link was not 
> because it's from Australia, but because it describes the 
> difference between termination and rescission very well. Those 
> who want to learn will learn from that. Those who don't may claim
>  that the common law of contracts comes from the Second Circuit.

Rahul if you wish study American contract law go the The American
Law Institutes' *Restatement of Contracts* series or look to
*Williston on Contracts* or *Corbin on Contracts*. Stay out of
Australia.

Sincerely,
Rjack :)