Re: SFLC files 2nd intimidation suit

[rjack]

Alexander Terekhov wrote:
> Developments...
>
> Alexander Terekhov wrote:
> > One more suit:
> >
> > http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf
>
> http://www.terekhov.de/GPLvVerizon/INITIAL_CONFERENCE_ORDER.pdf
>
> I suspect that SFLC will voluntary dismiss before the deadline to 
> submit a written report listing the contract nature of the GPL as 
> contested legal issue. :-)
>
> regards,
> alexander.
>
> --
> "Plaintiffs’ copyrights are unique and valuable property whose market 
> value is impossible to assess"
>
>                              -- SOFTWARE FREEDOM LAW CENTER, INC.

From the INITIAL CONFERENCE ORDER:

“4. ORDERED that counsel for all parties. . . shall set forth the 
following information. . . required by Fed. R. Civ. P. 26(f):
    b. A concise statement of each party’s position as to the basis of 
this Court’s juridiction of the action, with citations to all statutes 
relied upon and relevant facts as to citizenship
and jurisdictional amount.”

It will be interesting (to say the least) as to what personal harm the 
plaintiff’s have suffered so that they may invoke the District Court’s 
jurisdiction under Article III of the Constitution:

"A plaintiff must point to some type of cognizable harm, whether such 
harm is physical, economic, reputational, contractual, or even 
aesthetic. . . But the injury in fact test requires more than an injury 
to a cognizable interest. It requires that the party seeking review be 
himself among the injured.”; Koziara v. City of Casselberry, 392 F.3d 
1302 (11th Cir. 2004).

The plaintiffs' claim:

“13. Upon information and belief, since at least November 17, 2006, 
Verizon has distributed to the public copies of the Firmware in the 
Infringing Product, and none of these distributions included source code 
to BusyBox or offers to provide such source code.”

Unfortunately, the GPL promises source code to “all third parties”. The 
class of intended beneficiaries (all third parties) specifically 
excludes the plaintiffs who are parties to the contract.

“[E]ven when the plaintiff has alleged injury sufficient to meet the 
"case or controversy" requirement, this Court has held that the 
plaintiff generally must assert his own legal rights and interests, and 
cannot rest his claim to relief on the legal rights or interests of 
third parties."; Warth v. Seldin 422 U.S. 490 (1975).

Regards,
rjack

--- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332,
grants exclusive jurisdiction for infringement claims to the federal
courts, those courts construe copyrights as contracts and turn to the
relevant state law to interpret them."; Automation by Design, Inc. v.
Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals
for the Seventh Circuit 2006) ---