Re: Dismissal with prejudice is normal

[Alexander Terekhov]

Tim Smith wrote:
[...]
> I have checked with lawyers, and found out that dismissal WITH prejudice
> is normal in these cases.  When plaintiff sues for copyright
> infringement, that suit is over *specific* acts of infringement.  When
> the parties settle, and the suit is dismissed with prejudice, no more
> legal action can be taken against *those* *specific* *acts* of
> infringement.

SFLC complained about the following *specific* *acts* of infringement:

http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf

"Specifically, Defendant distributed and continues to distribute
Plaintiffs’ copyrighted BusyBox software without Plaintiffs’ permission
and despite the fact that Plaintiffs notified Defendant of its unlawful
activity. ... Plaintiffs have at no time granted any permission to any
party to copy, modify or distribute BusyBox under any terms other than
those of the License. ... Verizon distributes to its customers the
Actiontec MI424WR wireless router (“Infringing Product”), which contains
embedded executable software (“Firmware”). Defendant also provides the
Firmware corresponding to the Infringing Product for download via its
website, at http://www2.verizon.net/micro/actiontec/actiontec.asp.";

Dismissal with prejudice means that Plaintiffs *lost* the claim
regarding *continued* distribution of "Plaintiffs’ copyrighted BusyBox
software without Plaintiffs’ permission".

Go visit http://www2.verizon.net/micro/actiontec/actiontec.asp once
again.

> 
> If defendant violates the settlement agreement over those specific acts
> (e.g., if the settlement called for a payment to be made, and it is not
> made), the remedy for plaintiff is a new suit over the breach of the
> settlement.  The settlement is a contract, and it is enforced in
> contract law--even if the original copyright suit was a pure copyright
> infringement suit, with nothing to do with with contracts.

Aha. So in the GNU Republic in order to enforce "a license not a 
contract" you must first sue and dismiss in order to create a 
contract and then enforce that contract under the contract law. LOL. 

That's quite a waste of judicial resources, don't you think? Beside 
that,

"It provides that "no action for infringement of the copyright in 
any United States work shall be instituted until pre-registration 
or registration of the copyright claim has been made in 
accordance with this title." 17 U.S.C. sec. 411(a); see also 17 
U.S.C. sec. 501.1 Whether this requirement is jurisdictional is 
not up for debate in this Circuit. On two recent occasions, we 
have squarely held that it is."; In re Literary Works in 
Electronic Databases Copyright Litigation; Nos. 05-5943-cv(L), 
06-0223-cv(CON)(2d Cir. Nov. 29, 2007). 

http://infotechlawpolicy.blogspot.com/2008/01/second-circuit-vacates-settlement-of.html
(Second Circuit Vacates Settlement...) 
 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)