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From: Rex Ballard
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:08:47 -0000
User-agent: G2/1.0

On Mar 9, 3:42 am, David Kastrup <> wrote:
> RJack <> writes:
> > The SFLC has finally bought itself a shit-load of trouble.

> Because defendents write up a defense?  That's not really that
> remarkable.

Actually, the defendents are required by law to file a response.  If
they don't the lose in a default judgement.  The response in the case
is pretty much pro-forma.  Until the facts are known, and all
disclosures are made, and the judge make preliminary rulings as to how
the law is to be interpreted, what facts will be admissable, and what
further disclosures may be ordered, neither side wants to rush to a

> > 13. Best Buy requests a jury trial on all issues triable of right by a
> > jury.

> Juries don't interpret the law but decide on questions of fact finding.
> There is not much leeway for finding here as long as plaintiffs did not
> ask for punishment of willful violation, but for compliance.

Again this is the de-facto response.  This is the respondant's way of
reserving their right to a jury trial, should there be no possibility
of a settlement and should the judge rule that the charges are with
full merit and that there has been wilful violation of the law.  Even
then, often, the jury will not decide the issues of fact or of law,
but may end up only being asked to determine the amount of the

> But Best Buy does not state being in compliance, but rather not being
> affected by BusyBox copyrights.

Actually, it does not claim noncompliance, it claims that his not
violated the copyrights.

Best Buy will probably make it's case, as to whether or not they felt
they were in compliance during the disclosure process.  It's up to the
plaintiff to prove that Best Buy was not in compliance.  In this case,
the SFLC most prove that Best Buy violated the terms of the BusyBox
license.  Best Buy could respond by offering it's own disclosures
showing how it did attempt to comply with the license, at which point,
they may ask the judge for a preliminary ruling as to whether their
efforts met the legal requirements of compliance.


> > WHEREFORE, Defendant/Counterclaimant Best Buy prays for judgment in its
> > favor against Plaintiffs/Counterclaimants as follows:

> > 1. Dismissing Plaintiffs’ cause of action with prejudice and on the merits;

Again, this is a standard part of a response.  It's pretty much
boilerplate.  If the plaintiff has no basis for the case, or at least
cannot provide evidence that the copyright was violated, in this case,
that the terms of the license were violated, then the pro-forma
countersuit is their way of preventing frivolous lawsuits.  If the
lawsuit was in fact frivolous, for example, Best Buy actually did
publish the source code on their web site, as required by the
copyright license, and Best Buy provided this information prior to
SFLC filing the lawsuit, then the judge would quite likely rule in
favor of Best Buy.

> > 2. Declaring that Best Buy has not infringed the alleged copyrights in
> > BusyBox;

This response, again boilerplate, doesn't state whether they acually
copied code from BusyBox, or whether they did copy and also adhered to
the terms of the BusyBox license.

> > 3. Awarding Best Buy its costs, including reasonable attorneys’ fees,
> > incurred in connection with this matter; and
> > 4. Awarding such other relief as this Court deems just and equitable.

> > This means that the SFLC cannot file a vouluntary dismissal without
> > the permission of Best Buy Inc.

It sets the stage for a settlement.  The SFLC and Best Buy will
provide disclosures to each other as ordered by the judge.  If Best
Buy can show that it was in compliance with the license, then it will
be up to Best Buy to prove that SFLC had been told that they were in
compliance, had proved they were in compliance, and that SFLC
knowingly filed a frivolous lawsuit.

Again, these standard boilerplate responses are designed to meet the
requirements of the law, based on the legal requirements at this stage
of the case.  These responses prevent people from filing frivolous
lawsuits which have no merit and/or are filed even after the
respondent has notified the plaintiff that it had every intention of
being in compliance, and that it was in compliance.

> There is no such thing as "filing an unvoluntary dismissal".  And of
> course, once Best Buy agrees to settle, both parties will file a joint
> request for dismissal because of having agreed on settlement terms.

Both sides need to reach an agreement to settle.  In many GPL
lawsuits, the only requirement for the settlement, is to show that you
have met, and will continue to meet, the disclosure requirements.
However, before there is a settlement, both sides need to know what
the other side knew.  They have to prove that there the copyrighted
code was copied, and they have to prove that the person or company
making the copies had violated the terms of the copyright agreement.
Finally, if they want damages, they have to prove that the copying and
the failure to comply with the license terms was a willful and
deliberate act.

And before ANY of that goes to a jury, both sides have to show their
cards to the Judge and to each other.  Usually, by that time, both
sides are more than willing to settle for terms which are not terribly
punitive to either side.  The one thing that can get ugly is if the
Plaintiff drags out the proceedings demanding more and more
disclosures, increasing the cost of the legal defense, and then the
case turns out to be without merit.  In those cases, the settlement is
again usually something the Plaintiff wants, but the plaintiff may not
be able to afford to pay the legal fees of the defense.  IN some
cases, the Judge will allow the defendent to make a case for "Deeper
Pockets", allowing the defendent to collect legal fees from sponsors
of the plaintiff's actions.  These could be business partners,
investors, venture capital firms, or other sources of money that would
have been made available, had the case proceeded in favor of the
Plaintiff.  This is what IBM has been doing in the SCO case.  IBM
asked the Judge to drop most of the charges, then showed that SCO was
trying to sue IBM for sharing code that was owned by IBM not SCO, then
got permission from the Judge to go after all of the companies that
had helped to fund the SCO lawsuit, including Microsoft.

> You'll be hollering about "voluntary dismissals" on the side of the SFLC
> and foaming at your mouth.  But that's the way this stuff works.

This is all boilerplate language.

It really doesn't mean anything yet.

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