Rahul Dhesi wrote: > > Rjack <[email protected]> writes: > > >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.... > > You are still mixing up the concepts of termination and rescission.
Stop being utterly silly, Rahul. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/2nd/969224.html Finally, James argues that even if the nonpayment of royalties and the removal of James's authorship credit amount to no more than breaches of covenants, these breaches terminated the license. A material breach of a covenant will allow the licensor to rescind the license and hold the licensee liable for infringement for uses of the work thereafter. See Rano v. Sipa Press, Inc. , 987 F.2d 580, 586 (9th Cir. 1993) ("[A] material breach of a licensing agreement gives rise to a right of rescission which allows the nonbreaching party to terminate the agreement."); Costello Publ'g Co. , 670 F.2d at 1045 ("[E]ven if the counterclaims asserted merely constitute a breach of contract, an action for copyright infringement would lie if the breach is so material that it allows the grantor power to recapture the rights granted so that any further use of the work was without authority."); 3 Nimmer on Copyright , supra , § 10.15[A], at 10-123- 10-125; see also Lulirama Ltd. v. Axcess Broad. Servs., Inc. , 128 F.3d 872, 882-83 (5th Cir. 1997) (holding that non-exclusive license is not revocable at will of licensor). Under New York law, rescission is permitted if the breach is "material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract." Septembertide Publ'g, B.V. v. Stein and Day, Inc. , 884 F.2d 675, 678 (2d Cir. 1989) (internal quotation marks and citation omitted). Even assuming Graham materially breached the licensing agreement and that James was entitled to rescission, such 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.") (emphasis omitted). Similarly, although James sometimes characterizes the licensing agreement as abandoned, abandonment of a contract can be accomplished only through mutual assent of the parties, as demonstrated by positive and unequivocal conduct inconsistent with an intent to be bound. See Armour & Co. v. Celic , 294 F.2d 432, 435-36 (2d Cir. 1961). 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. See id. at 436. We vacate the copyright infringement award because: (i) the record does not show that James was permitted to and did rescind the license or that Graham and James agreed to abandon the licensing agreement 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.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
