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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Rahul Dhesi
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Tue, 17 Mar 2009 21:56:40 +0000 (UTC)
User-agent: nn/6.7.0

Rjack <address@hidden> writes:

>I have made a consistent claim in a long history of internet
>postings that, "The GPL is unenforceable under U.S. copyright law".
>These posts consist of legal reasoning presented in the general form
>of the arguments that are presented in U.S. courts. These arguments
>consist chiefly of citations to statutes and prior legal decisions
>(the doctrine of "stare decisis")....

STOP THE PRESS!

You misunderstand stare decisis.

It doesn't mean that the courts must not ever change their analysis.

It means that the courts adhere to prior precedential decisions that
apply the law to similar facts.

Similar facts. Not all facts.

Almost all copyright decisions ten years ago assumed that copyright
owners merely wanted money and attribution. So the copyright owner
generally got damages, not an injunction, if he had given any permission
to copy to the defendant.

For the first time, the CAFC in its JMRI ruling realized that copyright
owners have a third type of interest: Wide dissemination of their work
not for money and not for mere attribution. Therefore damages alone
would be meaningless, because money was never a motive to begin with.

And although the CAFC did not explicitly say so, it may also have
recognized that for the first time, the copyright owner actually wanted
exactly what the copyright clause in the constitution wants: widespread
dissemination of a creative work.

You might have seen legal commentators complaining that the CAFC
ignored precedent.

These commentators, and you, did not recognize that the facts have
changed.

When facts change, the law must be interpreted afresh.  Stare decisis
does not apply.
-- 
Rahul
http://rahul.rahul.net/


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