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Re: Shoplifting, concealment, liability presumption

From: RJack
Subject: Re: Shoplifting, concealment, liability presumption
Date: Tue, 04 May 2010 16:08:13 -0000
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
If this is victory for the little guy, I'd really hate to see what
 defeat is like.

Yeaaaaaah... A "victory" perhaps in the district courts of Zimbabwe.

"Accordingly, we deem it appropriate here to decide non-patent matters
in the light of the problems faced by the district court from which
each count originated, including the law there applicable. In this
manner, we desire to avoid exacerbating the problem of intercircuit
conflicts in non-patent areas. A district court judge should not be
expected to look over his shoulder to the law in this circuit, save as
to those claims over which our subject matter jurisdiction is
exclusive. [Footnote omitted.]
The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and
in this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223
USPQ 1074 (Fed. Cir. 1984) (en banc).

The truth of the matter is that there is no victory for "open source
licenses". "Open source" licenses and "proprietary" are interpreted
using the exact same rules. Each license (contract) is  individually
interpreted according to the state common law of contracts.

"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08."
Edwin Kennedy v.National Juvenile Detention Association and Illinois
Juvenile Justice Commission, 187 F.3d 690 (7th Cir. 1999).

The current SFLC case resides in New York state and the GPL adhesion
contract will be construed according to the common law of the State of
New York consistent with Second Circuit federal precedent. All this
blather about the Jacobsen "victory" precedent is just that -- senseless

RJack :)

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