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Re: The GPL means what you want it to mean


From: Rjack
Subject: Re: The GPL means what you want it to mean
Date: Thu, 09 Apr 2009 17:57:53 -0400
User-agent: Thunderbird 2.0.0.21 (Windows/20090302)

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

Present a rational, logical argument supported by legal authority
and have at it. There is nothing intrinsically wrong with
disagreeing with a court when relying on alternate but
conflicting legal authority.

The CAFC panel, comprising three smart people, already unanimously provided you with a rational, logical argument supported by legal authority. If that doesn't satisfy you, nothing will.

The JMRI case may soon be heard again by the Ninth Circuit. If so,
the Ninth Circuit will surely uphold the possibility of an
injunction against those who misappropriate copyrighted software.

I suspect *any* Circuit would uphold the "possibility" of an
injunction if the "misappropriation" of copyrighted software
actually violated *copyright* law. Judge White of the Northern
District of California cited to Ninth Circuit precendential law when
he found that Jacobsen's remedies were contractual in nature:

"The license explicitly gives the users of the material, any member of
the public, “the right to use and distribute the [material] in a
more-orless customary fashion, plus the right to make reasonable
accommodations.” (See Suppl. Jacobsen Decl., Ex. A.) The scope of the
nonexclusive license is, therefore, intentionally broad. The condition
that the user insert a prominent notice of attribution does not limit
the scope of the license. Rather, Defendants’ alleged violation of the
conditions of the license may have constituted a breach of the
nonexclusive license, but does not create liability for copyright
infringement where it would not otherwise exist. Therefore, based on
the current record before the Court, the Court finds that Plaintiff’s
claim properly sounds in contract and therefore Plaintiff has not met
his burden of demonstrating likelihood of success on the merit of his
copyright claim and is therefore not entitled to a presumption of
irreparable harm. See Sun Microsystems, 188 F.3d at 1119. Plaintiff
has not met his burden of demonstrating either a combination of
probable success on the merits of his copyright claim nor the
existence of serious questions going to the merits. See GoTo.com, 202
F.3d at 1204-05."
http://www.scribd.com/doc/259007/jacobsen-v-katzer

If you acually think the Ninth Circuit will overrule it's own
precendent because of the CAFC ruling, then I have a nice bridge in
Brooklyn that I would like to sell you -- cheap.

"Because of an unusual quirk in US law, the court had to apply
the legal standards of a sister appellate court, the 9th Circuit Court
of Appeals; and the Federal Circuit's interpretation of 9th Circuit
law has no precedential value. "Even a future Federal Circuit case on
this area of the law must look again to the regional [9th] circuit and
not the Federal Circuit interpretation," according to Harold Wegner, a
partner in the Washington, DC office of Foley & Lardner."
http://www.mail-archive.com/address@hidden/msg07755.html

And I predict that that won't satisfy you either.

Rjack and Wallace quote a lot of case law fragments, but seem to
not consider the point that the law is, in the end, all about
dispensing justice.  Denying a copyright owner any recourse against
those who misappropriate his software would be an injustice.

Get the facts straight Rahul. Judge White didn't deny "any recourse"
in the law. He simply correctly applied Ninth Circuit prevailing law
and said any remedy was contractual in nature.

And generally the courts tend to lean against that. This simple
fact explains why the CAFC ruled the way it did. At the end of the
day, it's mostly about keeping things fair.

Sincerely,
Rjack :)


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