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


From: Alexander Terekhov
Subject: Re: Psystar's legal reply brief in response to Apple
Date: Wed, 08 Dec 2010 15:58:41 -0000

ZnU wrote:
[...]
> > You are indeed correct that "you are not interested in carrying any
> > burden of proof". You claim the Artistic License generalizes to the GPL
> > but you can't prove it. It is you who are playing games by hypothesizing
> > and then refusing to carry your burden of proof.
> 
> You're simply playing games. There is a _huge_ difference between
> reasoning from general principles in the presence of case law that
> apparently _disagrees_ with your conclusions, and using that same case
> law to predict the outcome of an _extremely similar_ case. If you
> believe there is some key difference between the Artistic License and
> GPL that distinguishes these cases, name it.

http://www.perlfoundation.org/artistic_license_1_0

Do you see a word "termination" ala the GPL "automatic termination".

If the GPL "conditions" are _extremely similar_ to "copyright
conditions" as in CAFC's interpretation of the Artistic License then
what is meant by the "automatic termination" in the GPL? Under the CAFC
invented concept of "copyright conditions" there is nothing to
terminate. So the GPL "conditions" must mean something different. Do you
agree?

Note also that in reality (outside the GNU continuum) rescission of
license contracts doesn't happen automatically:

"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)

affirmed 2007 by the Eastern District:

“. . . rescission of the contract only occurs upon affirmative acts by
the licensor, and a breach by one party does not automatically result
in rescission of a contract. Id. at 238 (”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”).”;
Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716
(E.D.N.Y. April 30, 2007).

And even assuming successful termination...

In the case of general public licenses there nothing preventing me to
enter into licensing contract relationship anew (fresh one) the moment
the GPL'd copyright owner purports to have rescind the previous one.
The situation is no different when Microsoft would terminate my
Windows 7 EULA and I just go and buy another copy and create another
EULA relationship instead of terminated one.

So just take a license, breach it, wait for termination, take another
license, breach it, wait for termination... Rinse lather repeat.

regards,
alexander.

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)


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