Re: Copyright Misuse Doctrine in Apple v. Psystar

[Rjack]

Rahul Dhesi wrote:
> Rjack <user@example.net> writes:
>
> > Unfortunately, if you wish to refute my cited authority of 
> > Graham v James you'll have to do it on your own dime. The case
> >  *clearly* refutes "automatic termination" due to breach so 
> > either you haven't read it or are incapable of understanding 
> > it. Alexander Terekhov also directed you to the same case. TRY
> >  READING THE CASE!!!!
>
> > http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/2nd/969224.html
>
> The opinion that you so triumphantly cite states: "Graham and 
> James orally agreed to the licensing agreement and did not 
> clearly delineate its conditions and covenants."
>
> A case about an unclear oral agreement -- that's all you can come
>  up with?

"But the existence of a license was essentially uncontested in this
case. James affirmatively alleged in his answer and counterclaim (in
support of his breach of contract action) that "[o]n or about May
1991, defendant orally agreed to grant plaintiff the right to use
his computer program on CD-ROM disks in exchange for a fee of $1,000
for each CD-ROM version issued and a $1.00 fee for each copy of such
version sold by plaintiff."; Graham link (supra).

The fact the agreement was initially oral is irrelevant. The license
was stipulated in writing in the pleadings. You are using a red
herring argument -- complaining about the form of license -- to
evade discussing "automatic termination" but it is not working.

> After all these repeated citations, you couldn't find even one 
> case in which clear written "conditions" language was held to not
>  create conditions?
>
> Not even one case?
>
> The CAFC was well aware of this case and I will go with the 
> CAFC's analysis over yours.

Try that 'CAFC' line of authority in the Second Circuit where the
Cisco case is filed and the district judge would laugh your butt out
of court.

> The real moral of the case that you cite is a different one:
>
> An oral agreement isn't worth the paper it's written on.

A stipulated oral agreement is no longer "oral".

It's *not* automatic rescission. Read it and weep Rahul:

"[S]uch rescission did not occur automatically without some
affirmative steps on James's part. 22A N.Y. Jur. 2d Contracts  § 497
(1996) ("The failure of a party to perform his part of a contract
does not per  se  rescind it. The other party must manifest his
intention to rescind within a reasonable time."); see  also  Jacob
Maxwell, Inc. , 110 F.3d at 753 ("Such a breach would do no more
than entitle [the composer] to rescind the agreement and revoke its
permission to play the song in the future, actions [the composer]
did not take during the relevant period. One party's breach does not
automatically cause [rescission] of a bilateral contract.")";:
Graham v. James, 144 F.3d 229 (C.A.2 (N.Y.), 1998)

Sincerely,
Rjack :)