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From: | rjack |
Subject: | Re: Dismissal with prejudice is normal |
Date: | Fri, 20 Jun 2008 18:28:18 -0400 |
User-agent: | Thunderbird 2.0.0.14 (Windows/20080421) |
Tim Smith wrote:
In article <mpmdnbx8cLgoCMbVnZ2dnUVZ_rvinZ2d@giganews.com>, rjack <robjack@insightbb.com> wrote:Note that 41(a)(1)(A)(i) and 41(a)(1)(A)(ii) are connected by "or", not "and". Do you have reason to believe this dismissal was not under 41(a)(1)(A)(i)?Since no mutual stipulations under 41(a)ii are to be found, it's a good bet the unilateral 41(a)1 is being used by the plaintiffs.So? Why do you think it significant that no stipulation was filed? If the prerequisites of 41(a)(1)(A)(i) were met, why would they not use that section, and make the simpler, smaller, filing?
Except for *self-serving* statements issued by SFLC we can only guess as to what the motives were for dismissals under 41(a)(1)(A)(i). It is most plausible that the defendants simply said to the SFLC, "Dismiss or we will file a Rule 12 Motion to Dismiss" and collect our attorney fees and costs. Even an incompetent defense attorney would know that the SFLC pleadings are defective on their face due to lack of Copyright Office registration of theallegedly infringed works. The lack of a public settlement stipulation by both parties reinforces this scenario.
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. Sincerely, Rjack :) -- 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) --
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