Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Rahul Dhesi wrote:
> David Kastrup <dak@gnu.org> writes:
>
> > Rjack <user@example.net> writes:
>
> > > > Also there is no "evasion of an interpretation of the GPL" 
> > > > since the GPL is not even under dispute.  It would only be 
> > > > under dispute if the defendants claimed compliance as a 
> > > > defense....
> ...
> > > Would the GPL be construed as a contract and interpreted 
> > > under state law?
>
> > Do you even read what you are replying to?  If the defendant 
> > does not claim compliance, the GPL is not relevant to the case.
>
> I think Rjack has a valid point that a court might well treat the
>  GPL as a contract in such a case.
>
> But the defendant, if he loses, still loses big, as shown below.
>
> If the defendant argues that the plaintiff waived copyright, the
>  plaintiff will point out that if there was a waiver, it was a 
> waiver only for a limited time.  As soon as the license (or 
> contract, if you call it that) automatically terminates, there is
>  no GPL in effect any more and there is no contract in effect any
>  more and there is no waiver in effect any more. If any further 
> copying occurs outside fair use, then all you have is pure 
> copyright infringement.

There is no "automatic termination" in the Second Circuit:

“. . . 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).

> At this point the plaintiff gets a permanent injunction and the 
> defendant is SOL.

Sincerely,
Rjack :)