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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 18:15:51 +0200

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > Now what say you, Hyman?
> I say that you're once again conflating patents and copyrights.

Hyman, Hyman. In eBay, the Supreme Court was not persuaded by the
Federal Circuit's reasoning that "statutory right to exclude alone
justifies its general rule in favor of permanent injunctive relief." Id.
Rather, the Supreme Court explained that "the creation of a right is
distinct from the provision of remedies for violations of that right."
Turning by analogy to the context of injunctions under the Copyright
Act, which similarly embodies a statutory right to exclude, the Supreme
Court noted that the comparable provision uses the same "may" language
as the Patent Act and that "this Court has consistently rejected
invitations to replace traditional equitable considerations with a rule
that an injunction automatically follows a determination that a
copyright has been infringed.” Id.

Go tell the Supreme Court that they are once again confusing patents and
copyrights, Hyman.

Note also that Phelps case in the 4th Circuit was a copyright case, not
a patent.

So go tell the 4th Circuit that they are once again confusing patents
and copyrights as well, Hyman.

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 follows 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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