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Re: Dismissal with prejudice is normal

From: rjack
Subject: Re: Dismissal with prejudice is normal
Date: Thu, 19 Jun 2008 19:01:54 -0400
User-agent: Thunderbird (Windows/20080421)

Rick wrote:
On Thu, 19 Jun 2008 18:28:44 +0200, Alexander Terekhov wrote:

Maybe you can show us where the GPL has been found unenforceable in court.

Maybe people aren't as naive about legal logic as you think.

Those SFLC advocates who make *self-serving* statements such as "the GPL is
enforceable" bear the burden of producing a U.S. court decision demonstrating
the same. It is not incumbent upon anyone to produce a court decision that the
GPL *is* unenforceable -- you can't logically prove a negative.

SFLC lawyers keep filing the same rote, nonsensical claims in the S.D.N.Y.
Federal Court -- to wit:

"14. Section 4 of the License states:

You may not copy, modify, sublicense, or distribute the Program except as
expressly provided under this License. Any attempt otherwise to copy, modify,
sublicense or distribute the Program is void, and will automatically terminate
your rights under this License.

Therefore, under the License, any party that redistributes BusyBox in a manner
that does not comply with the terms of the License immediately and automatically
loses all rights granted under it. As such, any rights Defendant may have had
under the License to redistribute BusyBox were automatically terminated the
instant that Defendant made non-compliant distribution of the In-fringing
Product or Firmware. Since that time, Defendant has had no right to distribute
BusyBox, or a modified version of BusyBox, under any circumstances or 

The SFLC's "automatic termination" claims are nonsense. Here's the law of the
S.D.N.Y. according to The United Stastes Court of Appeals for the Second 

"New York law does not presume the rescission or abandonment of a contract and
the party asserting rescission or abandonment has the burden of proving it".
Graham v. James, 144 F.3d 229 (2d Cir. 1998)

Why file this nonsense crap, only to voluntarily dismiss time and time again?

For Federal jurisdiction it is a pleading requirement for the plaintiffs to
demonstrate Copyright Office registration of the alleged infringed code -- to 

"It [The Copyright Act] provides that "no action for infringement of the
copyright in any United States work shall be instituted until preregistration or
registration of the copyright claim has been made in accordance with this
title." . . .  Whether this requirement is jurisdictional is not up for debate
in this Circuit. On two recent occasions, we have squarely held that it is."
In re Literary Works in Electronic Databases Copyright Litigation 509 F.3d 116
(2nd Cir. 2007)

No Copyright Office registration warrants immediate dismissal by the court.

The SFLC will NEVER, NEVER, NEVER allow a Federal Court to review the GPL
license on the merits. They'll dismiss WITH PREJUDICE before allowing a
meaningful court review to occur.

The SFLC lawsuits are strategic bluffs -- nothing more.


"Facts are stubborn things; and whatever may be our wishes, our inclinations, or
the dictates of our passion, they cannot alter the state of facts and evidence."
-- John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre
Trials,' December 1770

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