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Re: Dismissal with prejudice is normal


From: rjack
Subject: Re: Dismissal with prejudice is normal
Date: Fri, 20 Jun 2008 18:28:18 -0400
User-agent: Thunderbird 2.0.0.14 (Windows/20080421)

Tim Smith wrote:
In article <address@hidden>, rjack
<address@hidden> wrote:
Note that 41(a)(1)(A)(i) and 41(a)(1)(A)(ii) are connected by "or", not "and". Do you have reason to believe this dismissal was not under 41(a)(1)(A)(i)?


Since no mutual stipulations under 41(a)ii are to be found, it's a good bet
 the unilateral 41(a)1 is being used by the plaintiffs.

So?  Why do you think it significant that no stipulation was filed?  If the
prerequisites of 41(a)(1)(A)(i) were met, why would they not use that
section, and make the simpler, smaller, filing?


Except for *self-serving* statements issued by SFLC we can only guess as to
what the motives were for dismissals under 41(a)(1)(A)(i).

It is most plausible that the defendants simply said to the SFLC, "Dismiss or we
will file a Rule 12 Motion to Dismiss" and collect our attorney fees and costs.
Even an incompetent defense attorney would know that the SFLC pleadings are
defective on their face due to lack of Copyright Office registration of the
allegedly infringed works. The lack of a public settlement stipulation by both parties reinforces this scenario.

The SFLC will NEVER, NEVER, NEVER allow a Federal Court to review the GPL
license on the merits. They'll dismiss WITH PREJUDICE before allowing a
meaningful court review to occur.

Sincerely,
Rjack :)

 -- It [The Copyright Act] provides that "no action for infringement of the
copyright in any United States work shall be instituted until preregistration or
registration of the copyright claim has been made in accordance with this
title." . . .  Whether this requirement is jurisdictional is not up for debate
in this Circuit. On two recent occasions, we have squarely held that it is."
In re Literary Works in Electronic Databases Copyright Litigation 509 F.3d 116
(2nd Cir. 2007) --








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