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A drunken judge in the SDNY

From: RJack
Subject: A drunken judge in the SDNY
Date: Wed, 08 Dec 2010 16:00:41 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 6.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/21/2010 9:23 AM, RJack wrote:

I think we have a drunken judge in the Southern District of New York.
Consider the following facts and matters of law:

The SFC and Erik Andersen swear that:

*** 22. Mr. Andersen has distributed BusyBox since on or about November
4, 1999. (Complaint at 22).

*** 31. Mr. Andersen is, and at all relevant times has been, a copyright
owner under United States copyright law in the FOSS software program
known as BusyBox. See, e.g., “BusyBox, v.0.60.3.”, Copyright Reg. No.
TX0006869051 (10/2/2008).
(Complaint at 31).

*** WHEREFORE, Plaintiffs respectfully request judgment against each
Defendant as follows:... (2) That the Court order each Defendant to pay
Plaintiffs’ actual and consequential damages incurred or statutory
damages;... (4) That the Court order each Defendant to pay Plaintiffs’
litigation expenses, including reasonable attorneys' fees and costs of
this action; (Complaint at Prayer for Relief)

Here is binding precedent from the Second Circuit Court of Appeals:

"Under 17 U.S.C. § 412, a plaintiff may not recover statutory damages or
attorney's fees for any infringement "commenced" before the effective
date of a copyright's registration. The courts have held, based on the
provision's text, legislative history, and purpose, that a plaintiff may
not recover statutory damages and attorney's fees for infringement
occurring after registration if that infringement is part of an ongoing
series of infringing acts and the first act occurred before
registration". Troll Company v. Uneeda Doll Company, 483 F.3d 150 (2nd
Cir. 2007).

Obviously, Andersen first published November 4, 1999 and registered the
copyright October 2, 2008, more than nine years later and under Second
Circuit precedent is not eligible for statutory damages and attorney fees.

So what does the district judge do? The judge, after acknowledging 17
USC§ 412, defies circuit precedent and awards $90,000 in enhanced
statutory damages and $47,685 in attorney fees. That's $137,685 the
Second Circuit Circuit Court of Appeals says that Erik Andersen isn't
entitled to.

We've got to get this judge off the bottle.

RJack :)

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