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Re: More FSF hypocrisy

From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Mon, 23 Mar 2009 16:50:59 +0100

Hyman Rosen wrote:
> amicus_curious wrote:
>  >  That argues against any injunction.
> That's not what the CAFC appeals court held, and that's not
> what other courts will hold when they're faced with open
> licenses.

"In its opinion, the Federal Circuit found that in the open source
field, there are potential harms to copyright holders, although they may
not be exclusively monetary. The court 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. There
are substantial benefits, including economic benefits, to the creation
and distribution of copyrighted works under public licenses that range
far beyond traditional license royalties. For example, program creators
may generate market share for their programs by providing certain
components free of charge. Similarly, a programmer or company may
increase its international reputation by incubating open source
projects. Improvement to a product can come rapidly and free of charge
from an expert not even known to the copyright holder.

Jacobsen v. Katzer, 535 F.3d at 1379. On this basis, the court found
that there could indeed be harm based exclusively on a copyright
infringement theory.

However, the Federal Circuit did not find, based on the record of this
case, that there was indeed either actual, current infringement or that
there was a likelihood of irreparable harm that tipped the balance of
equities in Jacobsen’s favor. The Federal Circuit court’s list of
potential harms that a copyright holder may face in the open source
field are just that – potential harms. There is no showing on the record
before this Court that Jacobsen has actually suffered any of these
potential harms. The standard under Winter requires that Jacobsen
demonstrate, by the introduction of admissible evidence and with a clear
likelihood of success that the harm is real, imminent and significant,
not just speculative or potential. 129 S. Ct. at 374. Jacobsen has
failed to proffer any evidence of any specific and actual harm suffered
as a result of the alleged copyright infringement and he has failed to
demonstrate that there is any continuing or ongoing conduct that
indicates future harm is imminent.3 Because Jacobsen fails to meet the
burden of presenting evidence of actual injury to support his claims of
irreparable injury and speculative losses, the Court cannot, on this
record, grant a preliminary injunction. See Goldie’s Bookstore, Inc. v.
Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) (holding that
speculative harm is insufficient to establish irreparable harm).

3 Although Jacobsen makes legal arguments regarding the alleged harm he
may suffer, for instance delays and inefficiency in development and time
lost in the open source development cycle, he has failed to put forward
any evidence of such harms. Jacobsen has failed to proffer evidence of
harm suffered or any evidence of a real or immediate threat of imminent
harm in the future. The Court also finds that Jacobsen has failed to
identify with the requisite particularity the extent of his copyright
ownership over the disputed underlying material. The JMRI Project
Decoder Definition Files incorporate many manufacturers’ specifications
data as well as rights to specific terms whose copyright is owned by
Defendants. Even if Jacobsen’s heavy burden to warrant injunctive relief
had been met, it is unclear how the Court would fashion an injunction
which would be narrowly tailored to enjoin only those allegedly
infringing uses of Jacobsen’s copyrighted content."


(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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