Sorry for continuing an old thread. My citation makes sense because it stands for the general proposition that licenses are contracts. Your arguments about how patent licenses differ from shrinkwrap EULAs are about whether a valid contract has been formed, not whether the proper mode of analysis is contract law or some other doctrine.

In any event, here is the "on-all-fours" citation you are looking for. ProCD Inc. v. Zeidenberg, 86 F.3d 1447, 1450 (7th Cir.1996) (upholding a copyright infringement claim based on a shrinkwrap license and stating "we treat the licenses as ordinary contracts accompanying the sale of products, and therefore as governed by the common law of contracts and the Uniform Commercial Code").

The US Supreme Court disagrees with your claim that licenses are not contracts. See, for example, MedImmune, Inc v Genentech, Inc, 549 US 118, 124 (2007) ("We express no opinion on whether a nonrepudiating licensee is similarly relieved of its contractual obligation during a successful challenge to a patent's validity.").

No. They will probably be able to stop paying royalties going forward once the patent is held invalid, however; most contracts state royalty payments are only owed while the patent is valid.

Try this example. Blockbuster does inconvenient, per-rental in-store rentals of movies. A new company (let's call it Netflix) comes around offering more convenient, flat-fee rentals. Many people start using to Netflix and stop going to Blockbuster. This costs Blockbuster business as they (initially) do not offer a comparable service to Netflix. Can you say with a straight face that Blockbuster lost nothing when people switched to Netflix since Blockbuster wasn't offering a comparable service?

Some people pirating movies wouldn't rent or buy them even if torrents did not exist. Some (probably many) would but instead use torrents as a substitute because of convenience or cost.

They are not arguing for an interlocutory appeal. They are arguing for an appeal under the collateral order doctrine (in addition to their writ). which according to Supreme Court precedent is an appeal under 1291 (final decisions of district courts), not 1292 (interlocutory appeals). See Quackenbush v. Allstate Ins. Co., 517 US 706, 1718-19:

"[W]e must determine whether that review may be obtained by appeal under 1291. The general rule is that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated . . . We have also recognized, however, a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under 1291 (internal citations and quotations omitted).

You are also wrong about what type of writ it is according to First Circuit precedents (such as the one I cited in my prior post), but it ultimately does not matter as First Circuit precedent also treats the two as interchangeable because it is so difficult to get the proper label on extraordinary writs.

I don't want to be a jerk, either, but I want to make a couple more points now that I have looked at the RIAA brief.

First, the proper writ is mandamus, not prohibition. See, e.g., Haas v. Kent, 803 F.2d 744, 744 (1st Cir 1986). Prohibition is about jurisdiction. I think they labeled it "petition for mandamus or prohibition" because under 1st Cir precedent the two writs are treated as interchangeable; throughout the body of their brief they ask for mandamus only.

Second, they have not abandoned their appeal. They are employing a two-track strategy. Track one is to seek an appeal and hope the district court order will be stayed while that appeal is considered. Track two is to seek an extraordinary writ to make sure this pops up on the 1st Cir's radar before Jan 22 (eight days is not a lot of time to even get an appeal docketed). In their brief, they ask for the writ or in the alternative expedited consideration of their appeal under the collateral order doctrine.

I think you are wrong about (c). Federal Rule of Appellate Procedure 8(a) says the initial motion for a stay has to be directed to the District Court. A motion for stay in the appellate court is only proper if it (1) shows moving first in the district court would be impracticable or (2) state that the District Court denied the stay and the District Court's reasons for denying the stay.

I have already posted about (a) and (b) elsewhere and why I think you are wrong as at least trying to get the First Circuit to assert jurisdiction under the collateral order doctrine is a legitimate move and requires filing a notice of appeal in the district court; although I am confidant the First Circuit will not find that it has jurisdiction because the importance prong of the collateral order doctrine test has not been satisfied.

What about the collateral order doctrine? See Lauro Lines s.r.l. v. Chasser, et al., 490 U.S. 495, 498 (1989). Granted, I think it will fail to meet the second prong of the test (the issue is too important to be denied review), but it is worth a shot if you really do not want this hearing broadcast.

That is not the text of the appeal. That is the notice of appeal that they are required to file with the district court before their appeal can be docketed in the First Circuit. See Federal Rule of Appellate Procedure 3, 12. It has no argument because you do not present your argument when filing your notice of appeal; you file it later with your brief on the merits according to the schedule set by the First Circuit.

You are right that actual damages are hard to prove and will likely be minimal in this case if they can be proved at all, which is why statutory damages is such a great carrot to incentivize registration. But I doubt Apple cares about recovering damages, especially from a fly-by-night operation like Pystar that is probably judgement proof in any event. What Apple really wants is a permanent injunction against PyStar, which it requests in paragraphs 30 and 39 of its complaint. They want to make sure there are no clones, not be made economically whole for the damage done to their business model by clones.

Agreed, and TFA is all about arguing that these two clauses are ambiguous when read in conjunction with each other. I agree with you that it looks based on the APA that Novell's interpretation of the contract is correct. My only point, as I said in my replies to the two other comments to my comment, is that SCO would not automatically lose based on the written transfer requirement if SCO's interpretation were accepted rather than Novell's. All a written transfer requires is

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. 17 USC 204

. I am not trying to pick a fight or troll. I am just pointing out that it is the interpretation of the contract that causes SCO to lose and not that the written transfer requirement would cause SCO to lose under any interpretation of the contract.