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

[RJack]

On 8/5/2010 8:38 AM, David Kastrup wrote:
> Alexander Terekhov<terekhov@web.de>  writes:
>
> > David Kastrup wrote: [...]
> > > A copy made without an intent or attempt of heeding the
> > > conditions of the copying permission does not count as "legally
> > > downloaded" with respect to fair use.
> >
> > It has nothing to do with fair use, silly dak.
> >
> > Not heeding your GNUtian "conditions" (illegal and hence void part
> >  of contractually imposed obligations aside for a moment) is a
> > contract breach, not copyright infringement.
>
> A "contract" does not come into being without a recognizable act of
> entering into contractual obligations.  In this particular case, we
> are not talking about a contract but rather a license bound to
> conditions.
>
> The whole folderol is rather academic since so far, no defendant
> (let alone any court) has been foolish enough to entertain your
> particular fanciful theories.
>
> > The idea that the "copyleft hack" of copyright act is enforceable
> > by the copyright act itself is utterly moronic.
>
> The courts so far disagree, and your dissenting opinion, however
> high you happen to value it, is utterly irrelevant.  Your legal
> predictions so far have had an ultimate failure rate of 100%.
>
> There is a joke about a certain old shephard having over 60% success
>  in predicting the weather, to the chagrin of a really learned
> meteorologist with about half the success rate.  So one day he
> swallows his pride and visits the shepherd, asking him just how he
> does it.  "Well, I wait for your prediction and then say the
> opposite."
>
> That technique would seem to guarantee a fabulous hit rate when
> applied to your legal predictions.

DAK, you are great at ad hominem attacks and emotional rhetoric but the
fact remains that in the past eighty years since the Supreme Court
decided De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236,
United States Supreme Court (1927), no federal circuit or district court
has ever held a copyright license to be anything other than a contract
interpreted under state law. There have been thousands of copyright
cases filed since 1927. It has been over ten years since Richard
Stallman and Eben Moglen began claiming that a license is not a
contract. In over ten years, GPL supporters like Groklaw's PJ who are
paralegals trained to do perform legal research, have never been able to
cite a single case where any federal court has ever held a copyright
license to be anything other than a contract. The same goes for law
professors like Eben Moglen and attorneys like Dan Ravicher. If some GPL
supporter somewhere in this World were to cite to a single U.S. federal
case demonstrating that a license was not legally treated as a contract,
then your criticisms concerning Alexander Terekhov and Daniel Wallace
would hold at least a modicum of respectability.

Sincerely,
RJack :)

--- Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the circumstances;
but the relation between the parties thereafter in respect of any suit
brought must be held to be contractual, and not an unlawful invasion of
the rights of the owner."; De Forest Radio Tel. & Tel. Co. v. United
States, 273 U.S. 236, United States Supreme Court (1927) ---

-- "Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995) --

-- "Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006) --