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Re: A drunken judge in the SDNY

From: Alan Mackenzie
Subject: Re: A drunken judge in the SDNY
Date: Wed, 08 Dec 2010 16:00:41 -0000
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss RJack <> wrote:
> 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:

What, ANOTHER incompetent judge!  How many such judges have you "outed"
on this newsgroup, RJ?  I think it's many rather than several.

> 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.

What does "effective date" mean here?  Might it not just mean 1999-11-04?

> 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.

At seems you're mistaken, somehow, just for once.

> 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.

It seems you're mistaken, somehow, just for twice.  Do you have any
particular expertise in USA law?  Like, did you ever work as, or even
for, a lawyer?

It's good to see these cases moving, though.

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

Maybe you should take a stiff drink or three, then perhaps you might see
things the same way as the judge.  Anyhow, if you're right, the
defendants will appeal against the ruling and get their money back.
You'll be sure to report on this.

> Sincerely,
> RJack :)

Alan Mackenzie (Nuremberg, Germany).

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