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Re: softwarefreedom.org and busybox fellows 'win' DEFAULT JUDGMENT


From: Alexander Terekhov
Subject: Re: softwarefreedom.org and busybox fellows 'win' DEFAULT JUDGMENT
Date: Sat, 13 Sep 2008 14:28:24 +0200

Alexander Terekhov wrote:
> 
> Ha ha!
> 
> If only the court really had jurisdiction...
> 
> ------
> 09/11/2008 6  DEFAULT JUDGMENT in favor of Erik Andersen and Rob Landley
> against Bell Microproducts, Inc., D.B.A. Hammer Storage. Ordered that
> this matter be referred to a Magistrate Judge for an inquest. (Signed by
> Judge Harold Baer on 9/10/08) (ml) (Entered: 09/11/2008)
> ------
> 
> http://www.terekhov.de/DEFAULT-JUDGMENT.pdf
> 
> ------
> ... all products, including the MyShare HN1200, embodying or
                                  ^^^^^^^
> incorporating the aforesaid copyrights of the Plaintiffs, in the
> possession, custody, or control of Defendant, be delivered up to the
> Plaintiffs for destruction within thirty (30) days after service on
> Defendant of this Judgment.
> ------

Someone nicknamed  "dio gratia" opined (quoting from the default
judgment):

------
"This action having been commenced on June 9, 2008 by the filing of the
Summons and Complaint, and a copy of the Summons and Complaint having
been personally served on the defendant, Bell Microproducts, Inc., on
June 16, 2008." 

You could note that the products have had GPL source code available
purportedly since 11 June 2008: 

http://www.hammer-storage.com/support/software_updates.asp (Bottom of
the page) 

Personally, I'm skeptical of about this little gem in the default
judgment: 

"4. The Plaintiffs have been irreparably damaged by Defendant's
aforementioned unlawful acts, and will continue to be irreparably
damaged, unless and until such acts are enjoined." 

In particular, with a history of forgiveness based on specific
performance. The original complaint found on the SFLC web site does
contain the enjoinder that "Plainti?s copyrights are unique and valuable
property whose market value is impossible to assess", but neglect to
specify that these are collective works which would limit the
Plaintiff's interest to their original works, and that the collective
works in question are distributed without recompense or expectation of
renumeration. You could also note "Defendant’s infringement harms
Plainti?s such that Plainti?s could not be made whole by any monetary
award" is also a true statement, but also doesn't quite have the same
severity when the plaintiffs have no expectation of direct renumeration
when allowing distribution of their interest in the collective work in
the first place. 

Call me old fashion, but that sounds like misrepresentation to the
Court, but then I'm not a lawyer. 
------

He he.

Back in February lawyer David A. Temeles, Jr. maintained:

http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:15580

------
From: "David A. Temeles, Jr." <address@hidden> 
Date: Tue, 12 Feb 2008 01:01:05 -0500 

---------------------------------------------------------------------------

Many of you may already be aware, but the Jacobsen v. Katzer case is not
the
only case in the last year or two with the potential to significantly
impact
the open source licensor's ability to rely on injunctive relief.  

The eBay v. MercExchange case is now beginning to filter through the
circuits and injunctions in patent and copyright cases are no longer
automatic.  See, e.g., In Christopher Phelps & Associates, LLC v.
Galloway,
477 F.3d 128 at page 139 (4th Cir., 2007), where the Fourth Circuit
stated:

Insofar as Phelps & Associates suggests that it is entitled to
injunctive
relief, we reject the argument. See eBay Inc. v. MercExchange, L.L.C.,
___
U.S. ___, ___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). In eBay,
the
Supreme Court rejected any notion that "an injunction automatically
follows
a determination that a copyright has been infringed." 126 S.Ct. at 1840
(reversing the Federal Circuit, which had articulated "a `general rule,'
unique to patent disputes, `that a permanent injunction will issue once
infringement and validity have been adjudged'"). The Supreme Court
reaffirmed the traditional showing that a plaintiff must make to obtain
a
permanent injunction in any type of case, including a patent or
copyright
case:

A plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages,
are
inadequate to compensate for that injury; (3) that, considering the
balance
of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a
permanent injunction.

Id. at 1839. Moreover, the Court reiterated that even upon this showing,
whether to grant the injunction still remains in the "equitable
discretion"
of the court.
------

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.)


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