Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Alexander Terekhov]

http://jmri.sourceforge.net/k/docket/279.pdf
(NOTICE OF TENTATIVE RULING AND QUESTIONS. Signed by Judge Jeffrey S.
White on December 17, 2008. (jswlc2, COURT STAFF) (Filed on 12/17/2008))

"[[...]]" below is my own remarks, not judge's.

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[...]
Motion for Preliminary Injunction

1. As Defendants have already admitted to infringement [[ did they?
there's the reference?? ]], there is likelihood of success on the merits
of Plaintiff’s copyright infringement claim. The sole issue before this
Court is a demonstration of irreparable harm or a clear disparity in the
relative hardships tipping in Plaintiff’s favor. See eBay Inc. v.
MercExchange, LLC, 547 U.S. 388 (2006). The Federal Circuit found that
the lack of money changing hands in open source
licensing should not be presumed to mean that there is no economic
consideration, however. The substantial benefits, which might constitute
irreparable injury in the context of this motion, are generating market
share for program creators, benefit to the program developers’
reputation, and improvements in the software. See Jacobsen v. Katzer,
535 F.3d 1373, 1379 (Fed. Cir. 2008). This potential harm is not
compensable with money damages [[ really? :-) ]] and therefore an
injunction is appropriate. On what basis do Defendants contend that such
harm has not been demonstrated, given the procedural history of this
matter?

2. If the Court finds there has been a demonstration of [[ irreparable?
]] harm by the Federal Circuit’s definition [[ LOL ]], and likelihood of
success on the merits [[ based on what? there's the reference?? ]] due
to the admitted infringement [[ which one? there's the reference?? ]],
the issue before the Court is the scope of the injunction [[ LOL ]].
What is the best language to encapsulate the material allegedly
infringed? In terms of drafting the scope of the injunction, should the
Court borrow from the Federal Circuit’s decision which defines the
admission of infringement as “portions of the DecoderPro software
[which] were copied, modified, and distributed as part of the Decoder
Commander software.” [[ LOL ]] Jacobson v. Katzer, 535 F.3d at 1379.

3. In terms of the scope of the injunction, how can the Court enjoin the
use of the old versions of Defendants’ products, which Plaintiff claims
he (and, presumably, other users) may still access and utilize the old
versions of Defendants’ products [[ ROFL ]]?

4. Do the partes have anything further they wish to address?

IT IS SO ORDERED.

Dated: December 17, 2008
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
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Ha ha.

regards,
alexander.

-- 
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