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Re: Copyright Misuse Doctrine in Apple v. Psystar


From: Rahul Dhesi
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Sun, 1 Mar 2009 02:11:05 +0000 (UTC)
User-agent: nn/6.7.0

Rjack <address@hidden> 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.

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. 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.

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
http://rahul.rahul.net/


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