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Re: Is the GPL all encompassing?

From: Alexander Terekhov
Subject: Re: Is the GPL all encompassing?
Date: Wed, 24 Sep 2008 17:13:22 +0200

Hyman Rosen wrote:
> The concept of statutory infringement exists so that authors will
> not have to prove actual harm. 

This is from a practicing IP lawyer (not to mention the Fourth Circuit
and... the Supreme Court): 

From: "David A. Temeles, Jr." <> 
Date: Tue, 12 Feb 2008 01:01:05 -0500 

Many of you may already be aware, but the Jacobsen v. Katzer case is not
the only case in the last year or two with the potential to
significantly impact the open source licensor's ability to rely on
injunctive relief.   

The eBay v. MercExchange case is now beginning to filter through the
circuits and injunctions in patent and copyright cases are no longer
automatic.  See, e.g., In Christopher Phelps & Associates, LLC v.
Galloway, 477 F.3d 128 at page 139 (4th Cir., 2007), where the Fourth
Circuit stated: 

Insofar as Phelps & Associates suggests that it is entitled to
injunctive relief, we reject the argument. See eBay Inc. v.
MercExchange, L.L.C., ___ 
U.S. ___, ___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006). In eBay,
the Supreme Court rejected any notion that "an injunction automatically
a determination that a copyright has been infringed." 126 S.Ct. at 1840
(reversing the Federal Circuit, which had articulated "a `general rule,'
unique to patent disputes, `that a permanent injunction will issue once
infringement and validity have been adjudged'"). The Supreme Court
reaffirmed the traditional showing that a plaintiff must make to obtain
a permanent injunction in any type of case, including a patent or
copyright case: 

A plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction. 

Id. at 1839. Moreover, the Court reiterated that even upon this showing,
whether to grant the injunction still remains in the "equitable
discretion" of the court. 

Now what say you, Hyman?


(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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