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Re: Actual Damages in JMRI Case


From: David Kastrup
Subject: Re: Actual Damages in JMRI Case
Date: Wed, 04 Nov 2009 16:12:05 +0100
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.1.50 (gnu/linux)

Alexander Terekhov <address@hidden> writes:

> Hyman Rosen wrote:
>> 
>> Alexander Terekhov wrote:
>> > http://jmri.sourceforge.net/k/docket/352.pdf
>> > He he.
>> 
>> This is the "Defendants’ Motion for Summary Judgment",
>
> Well, Hyman... note that Plaintiff's Motion for Summary Judgment 
>
> http://jmri.sourceforge.net/k/docket/343.pdf
>
> says *nothing* about Actual Damages whatsoever... presumably because
> Plaintiff agrees with Defendants that his Actual Damages ARE
> NON-EXISTENT... no, Hyman?

Actual damages are what the market for the equivalent of licensing the
software under the conditions that the defendant used would have cost.
That the licensor is not apparently interested in making use of the
market value (and consequently the item is not actually on the market)
does not play into this.

If somebody steals (and resells) a unique musical instrument of mine
which I never intended to sell, he can't claim that I don't have any
actual damages since I was not planning to sell it, and since it can't
be bought elsewhere.

As a minimum, the actual resale price (after all, the instrument or the
resulting software _has_ been resold) divided by the usual price
reduction factor for stolen goods (not unlikely 0.3 or so) would be a
reasonable guess for "market value".

If my aim of plaintiff is not getting monetary compensation, but rather
the original state back (return of the instrument, whatever consequences
to the thief, or rescinsion of all unauthorized software copies,
whatever consequences to the reseller), actual damages are not
interesting and not what I will be suing for.  In this case, the
defendant is bringing them up mostly as a red herring.

-- 
David Kastrup


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