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Re: Copyright Misuse Doctrine in Apple v. Psystar


From: Rjack
Subject: Re: Copyright Misuse Doctrine in Apple v. Psystar
Date: Fri, 27 Feb 2009 15:36:45 -0500
User-agent: Thunderbird 2.0.0.19 (Windows/20081209)

Rahul Dhesi wrote:
Rjack <address@hidden> writes:

A dismissal with prejudice just means you can't refile for a violation that has already occurred. You can always refile for violations occuring after that.

Rjack, how come you don't cite cases when amicus_curious gets the
 law wrong?

OK Rahul. Here's your case from the United States Supreme Court:

"See also 18 Wright & Miller § 4435, at 329, n. 4 ("Both parts of
Rule 41 ... use the phrase 'without prejudice' as a contrast to
adjudication on the merits"); 9 id., § 2373, at 396, n. 4 (" '[W]ith
prejudice' is an acceptable form of shorthand for 'an adjudication
upon the merits"')".;SEMTEK INT’L INC. V. LOCKHEED MARTIN CORP. 531
U.S. 497 (2001) http://www.law.cornell.edu/supct/pdf/99-1551P.ZO

Well, at least you included a URL (PDF though it is). But this is not
about the scope of a dismissal "with prejudice".  What's the scope of a
dismissal with prejudice? Does it apply to future violations as well?

It gets comlplex. It depends on whether the district court has diversity jurisdiction in which case a rare 'federal common law' provision is used or non-diversity which uses the resident state common law provisions governing dismissals for the appropriate section and subsection of FRCP 41. The BusyBox cases will use New York State law as controlling. Dismissals "with prejudice" pursuant to Rule 41(a)(1) will control.


To clarify, suppose somebody hits you, and you sue him, and he succeeds
in persuading you to dismiss with prejudice. Does this now give that
person a lifetime license to hit you any time he wishes? Citations would
be great!


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