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Re: Dismissal with prejudice is normal

From: rjack
Subject: Re: Dismissal with prejudice is normal
Date: Thu, 19 Jun 2008 14:25:38 -0400
User-agent: Thunderbird (Windows/20080421)

Tim Smith wrote:
Someone (I forget who) recently pointed out in one or both of these newsgroups that when SFLC and Verizon settled their recent lawsuit,
the suit was dismissed with prejudice.  What that means is that the
matter is completely over.  Plaintiff cannot file that suit again.
At first glance, it would seem that plaintiff, upon settlement, would
file for dismissal WITHOUT prejudice, so that plaintiff could re-file
the suit if the settlement was breached, or if new copyright
violations occurred.

I have checked with lawyers, and found out that dismissal WITH
prejudice is normal in these cases.  When plaintiff sues for
copyright infringement, that suit is over *specific* acts of
infringement.  When the parties settle, and the suit is dismissed
with prejudice, no more legal action can be taken against *those*
*specific* *acts* of infringement.

1) No *specific* acts of infringement were ever alleged -- only a
general allegation was raised -- to wit:

"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."

The reason no *specific* acts were alleged is because the alleged harm
is failure to provide source code to "all third parties" AKA "the
public" [see the GPL sec.2(b)].

Plaintiffs Andersen and Landeley as named parties to the GPL contract
are specifically excluded from being members of the class of intend
donee beneficiaries (all third parties) assigned under GPL. Thus the
plaintiffs have no legal standing to complain about harm suffered by
others (the public).

The United States Supreme Court has made this principle quite clear:

"Apart from this minimum constitutional mandate, this Court has
recognized other limits on the class of persons who may invoke the
courts' decisional and remedial powers. First, the Court has held that
when the asserted harm is a "generalized grievance" shared in
substantially equal measure by all or a large class of citizens, that
harm alone normally does not warrant exercise of jurisdiction. Second,
even 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)

If defendant violates the settlement agreement over those specific
acts (e.g., if the settlement called for a payment to be made, and it
is not made), the remedy for plaintiff is a new suit over the breach
of the settlement.  The settlement is a contract, and it is enforced
in contract law--even if the original copyright suit was a pure
copyright infringement suit, with nothing to do with with contracts.

If defendant commits *new* acts of infringement, those lead to new causes of action, which plaintiff can sue for.

Net result: nothing useful can be deduced from the fact that after
the parties reach a settlement in a copyright infringement case, the
lawsuit is dismissed with prejudice.

2) No "contractual" settlement has ever been displayed by *any party* in
any lawsuit filed by the SFLC. Several *self-serving* claims of "settlement" have been issued by the SFLC -- unsupported by any evidence of record.

If you want people to believe in flyin' pigs them show 'em the alleged
pig -- wings and all.


“The GPL is a License, Not a Contract, Which is Why the Sky Isn't
Falling”, Sunday, December 14 2003 @ 09:06 PM EST   Pamela Jones at Groklaw

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