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JMRI to CAFC: you forgot to give us 962.16 dollars, please reconsider!!!

From: Alexander Terekhov
Subject: JMRI to CAFC: you forgot to give us 962.16 dollars, please reconsider!!!
Date: Mon, 15 Sep 2008 09:19:42 +0200

Ha ha.

Motion of Robert Jacobsen for Costs

Pursuant to Fed. R. App. P. 39(d)(1) and 39(a)(4), Jacobsen requests
costs for his appeal.

Jacobsen appealed the denial of his motion for a preliminary injunction
to this Court. The district court based its decision on its
interpretation that terms in Jacobsen's open source license were
contractual covenants, which when violated, resulted in a breach of
contract action, not copyright infringement. Prior to this appeal, no
appellate court had interpreted an open source software license. A group
of six major open source organizations filed an amicus brief supporting
Jacobsen. This case was watched closely by the open source community.

On August 13,2008, this Court vacated the district court's opinion,
stating that Jacobsen's open source license terms were conditions, which
when violated resulted in copyright infringement. The decision is a key
win for open source, and it made national news. The New York Times, Wall
Street Journal, Reuters, Associated Press, BBC, and as well as the legal
press (e.g., San Francisco Daily Journal) and computer press (e.g., PC
Magazine and Information Week) reported on the Court's opinion. The open
source community has hailed this decision as a major win for open
source. E.g., Lawrence Lessig, "huge and important news: free licenses
upheld", at (Aug.
13, 2008); Mark Radcliffe, "Major Victory for Open Source in Jacobsen
Decision", at
(Aug. 13, 2008).

Although the Court vacated the district court's ruling, the Court did
not indicate who should bear costs. Jacobsen won a key point that he
sought to be reversed-that Artistic License terms are conditions and not
contractual covenants. This Court vacated, instead of reversed, the
district court's ruling because the district court's ruling was
incomplete. Considering the value of this Court's decision as a seminal
case in copyright law and open source law, Jacobsen believes that the
Court should, in its discretion, award costs to him for bringing the
appeal. A bill of costs for under $1000 is attached.

Jacobsen's counsel has discussed this motion with Katzer and KAMIND
Associates, Inc.'s counsel. Katzer and KAMIND Associates, Inc. oppose
this motion and will file a written response.


For the foregoing reasons, Jacobsen's motion for costs should be

FRAP 39(a)(4) states "if a judgment is affirmed in part, reversed in
part, modified, or vacated, costs are taxed only as the court orders."


(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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