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Re: Actual Damages in JMRI Case

From: Alexander Terekhov
Subject: Re: Actual Damages in JMRI Case
Date: Wed, 04 Nov 2009 16:40:07 +0100

Hyman Rosen wrote:
> Alexander Terekhov wrote:
> > presumably because Plaintiff agrees with Defendants that
>  > his Actual Damages ARE NON-EXISTENT... no, Hyman?
> <>
>      Copyright licenses are designed to support the right to
>      exclude; 

Err. Copyright licenses are designed to support the right to include.

>      Indeed, because a calculation of damages is inherently
>      speculative, 

See? CAFC admits that Actual Damages ARE NON-EXISTENT. E.g. from the 6th

"a damage award must not be based on 'mere speculation, guess, or
conjecture.' " John E. Green Plumbing & Heating Co. v. Turner
Construction Co., 742 F.2d 965, 968 (6th Cir.1984), cert. denied 471
U.S. 1102, 105 S.Ct. 2328, 85 L.Ed.2d 845 (1985), (quoting Zivin
Laboratories Int v. Mead-Johnson & Co. 208 F.Supp. 633 (E.D.Mich.1962).
. . . After reviewing the record, however, we are convinced that the
bankruptcy court's award of actual damages was erroneous because it was
based on speculative evidence and mere conjecture."

or from the 10th:

"The fact of damage, however, must be proved to a certainty.
Mathematical exactness as to the amount is not required but the evidence
must form a basis for a reasonable approximation. The court must have
before it such facts and circumstances to enable it to make an estimate
of damage based upon judgment, not guesswork. Palmer v. Connecticut Ry.
& Lighting Co., supra. 'Actual damages only may be secured. Those that
are speculative, remote, uncertain, may not form the basis of a lawful
judgment. The actual damages which will sustain a judgment must be
established, not by conjectures or unwarranted estimates of witnesses,
but by facts from which their existence is logically and legally
inferable. The speculations, guesses, estimates of witnesses, form no
better basis of recovery than the speculations of the jury themselves.'
Central Coal & Coke Co. v. Hartman, 8 Cir., 111 F. 96, 98. "

>                   these types of license restrictions might well
>      be rendered meaningless absent the ability to enforce through
>      injunctive relief.

That is CAFC's silly attempt to create idiotic new law for the 9th

"I think that these copyleft licenses are great and all, but this
decision ought to be rubbing people the wrong way. Essentially, the
court found that breach of a contract clause (attribution) can give rise
to "copyright infringement!" The court bent over backwards to make
attribute a "condition" on the license grant, but I was left entirely

The grant was purposefully broad. It does not seem that the person
breached the granting clause. They breached other provisions.

This is bad because most grants have some "catch-all" language that
states: Licensor grants to licensee a non-exclusive right to do x under
Licensor's patents [copyrights], provided licensee complies with the
terms of this agreement. Does that mean ANY violation of the contract
gives rise to an infringement? E.g. if you make ONE late payment and
you're now an infringer? Yikes!

That said, presumably a licensor can terminate the agreement for breach
and then on-going activity would be infringement. But that is simply not
what this court has done.

All around, really, not a good day for the consumers."


(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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