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Re: Tom Tom and Microsofts Linux patent lock-down ..

From: Rjack
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Tue, 17 Mar 2009 19:04:43 -0400
User-agent: Thunderbird (Windows/20081209)

Rahul Dhesi wrote:
Rjack <> writes:

I have made a consistent claim in a long history of internet postings that, "The GPL is unenforceable under U.S. copyright law". These posts consist of legal reasoning presented in the general form of the arguments that are presented in U.S. courts. These arguments consist chiefly of citations to statutes and prior legal decisions (the doctrine of "stare decisis")....


You misunderstand stare decisis.

It doesn't mean that the courts must not ever change their analysis.

STOP THE PRESS! I never said that -- not even remotely! I understand
stare decisis, I'm sure better than you do. Citing to prior
decisions as controlling law is invoking the doctrine of "stare

"[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be."; HUTTO v. DAVIS, 454 U.S. 370 (1982).

It means that the courts adhere to prior precedential decisions that apply the law to similar facts.

One of those precedential decisions was announced in 1927. To wit:

Whether this [act] constitutes a gratuitous license, or one for a
reasonable compensation, must, of course, depend upon the
circumstances; but the relation between the parties thereafter in
respect of any suit brought must be held to be contractual, and not
an unlawful invasion of the rights of the owner."; De Forest Radio
Tel. & Tel. Co. v. United States, 273 U.S. 236, United
States Supreme Court (1927).

This ruling applies to intellectual property licenses. It says
that an intellectual property license is a contract. This ruling
stands to this day. If you disagree with this assertion then by all
means let us see the legal authority overruling the Supreme Court in
this matter.

Similar facts. Not all facts.

Almost all copyright decisions ten years ago assumed that copyright owners merely wanted money and attribution. So the copyright owner generally got damages, not an injunction, if he had given any permission to copy to the defendant.

For the first time, the CAFC in its JMRI ruling realized that copyright owners have a third type of interest: Wide dissemination of their work not for money and not for mere attribution. Therefore damages alone would be meaningless, because money was never a motive to begin with.

1) You should re-read the CAFC decision:

"The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and distribute
the computer programs and files included in the downloadable
software package."

2) As previously stated the CAFC decision has no precedential force
whatsoever for future district courts concerning copyright law.

"Technically, the Federal Circuit's ruling will have no
precedential, effect. Because of an unusual quirk in US law, the
court had to apply the legal standards of a sister appellate court,
the 9th Circuit Court of Appeals; and the Federal Circuit's
interpretation of 9th Circuit law has no precedential value. "Even a
future Federal Circuit case on this area of the law must look again
to the regional [9th] circuit and not the Federal Circuit
interpretation," according to Harold Wegner, a partner in the
Washington, DC office of Foley & Lardner."

3) The Second Circuit's decisions (where the SFLC files its suits)
*do* carry precedental authority. The Second Circuit has never
recognized non-economic damages in copyright actions.

4) The Artistic License does not contain the "licensed at no charge"
scope restriction that the GPL contains. So, despite your lecturing
others about "decisions that apply the law to similar facts", you
attempt to compare apples and oranges in your license facts.

And although the CAFC did not explicitly say so, it may also have
 recognized that for the first time, the copyright owner actually
wanted exactly what the copyright clause in the constitution wants: widespread dissemination of a creative work.

You might have seen legal commentators complaining that the CAFC ignored precedent.

These commentators, and you, did not recognize that the facts have changed.

Rjack :)

When facts change, the law must be interpreted afresh. Stare decisis does not apply.

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