Re: Blowhard Bradley Kuhn and his fraud

[RJack]

On 2/2/2011 6:55 AM, Alexander Terekhov wrote:

> From SFLC's comical filing:
>
> "Absent an injunction, Plaintiffs will be irreparably harmed by Best
>  Buy and Phoebe Micro's continuing distribution of BusyBox in
> violation of the terms of the GPL. On the other hand, enjoining Best
>  Buy and Phoebe Micro from infringing activities, namely their
> continued unauthorized distribution of BusyBox will not pose a
> hardship to them, as they each distribute many other products not
> relevant to this case. By issuing a preliminary injunction and
> enforcing compliance with the GPL, the Court will ensure the vitality
> of free and open source licensing, namely ensuring that recipients
> have the right to modify software source code to make the software on
> their devices better."
>
> How the fuck NOT "ensuring that recipients have the right to modify
> software source code to make the software on their devices better"
> translates to irreparable harm to plaintiffs? What are the SFLC
> fellas smoking? They are not asking for specific performance (in the
>  sense that the court would force defendants to comply). How would
> the stop of distribution ensure "that recipients have the right to
> modify software source code to make the software on their devices
> better". Uh sillies.
>
> "The absence of a preliminary injunction will cause Plaintiffs to
> lose control over the modification and distribution of BusyBox and
> the considerable market share and reputation they have established
> in BusyBox, both of which are harms that have no adequate remedy at
> law."
>
> What the fuck is "considerable market share" for an IP work priced
> at zero, "reputation" aside for a moment?


The Second Circuit has adopted the eBay Inc. v. MercExchange LLC,
(547 U.S. 388) standard for *preliminary* injunctions.

See : http://ipwatchdog.com/cases/salinger_v_colting.PDF

"Writing for a unanimous Court, Justice Thomas held that neither the
district court nor the Federal Circuit correctly applied the equitable
factors:

According to well-established principles of equity, a plaintiff seeking
a permanent injunction must satisfy a four-factor test before a court
may grant such relief. A plaintiff must demonstrate:
(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent
injunction.

Next, the court must consider whether the plaintiff will suffer
irreparable harm in

the absence of a preliminary injunction, and the court must assess the
balance of

hardships between the plaintiff and defendant. Those two items, both of
which

consider the harm to the parties, are related. The relevant harm is the
harm that

(a) occurs to the parties’ legal [n.9] interests and (b) cannot be
remedied after a

final adjudication, whether by damages or a permanent injunction. The
plaintiff’s interest is, principally, a property interest in the
copyrighted material. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 661
(1834). But as the Supreme Court has suggested, a copyright holder might
also have a First Amendment interest in not speaking. See Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985)."

[n.9] As Judge Leval noted in New Era Publications International, ApS v.
Henry Holt & Co., “the justification of the copyright law is the
protection of the commercial interest of the artist/author. It is not to
coddle artistic vanity or to protect secrecy, but to stimulate creation
by protecting its rewards.” 695 F. Supp. 1493 (S.D.N.Y. 1988).
-
Sincerely,
RJack