Re: More FSF hypocrisy

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> amicus_curious wrote:
> > But when push came to shove, their injunction was denied since they
> > could not show any value for the non-monetary issues.
> 
> No. A preliminary injunction was denied because the plaintiffs
> did not demonstrate the likelihood of irreparable harm should
> the preliminary injunction not be granted. And that's *did not*,
> not *could not* - they didn't try, because they thought they
> didn't have to:
> 
> <http://www.goodwinprocter.com/~/media/9DB0FE31AE574BCA94F40689EE789316.ashx>
>      It is important to note, however, that Jacobsen pled
>      his case assuming the availability of a presumption of
>      irreparable harm on a motion for preliminary injunction
>      in a copyright infringement case. If Jacobsen had been
>      aware at the pleading stage that evidence of actual harm

Oh really?

At the pleading stage defendants pointed out that

http://jmri.sourceforge.net/k/docket/264.pdf

"In 2006, however, the Supreme Court eviscerated the presumption of
irreparable harm to motions for permanent injunctions in the patent
infringement context, holding that a Plaintiff seeking a permanent
injunction must demonstrate that the traditional equitable factors for
granting an injunction have been met. eBay Inc., 547 U.S. at 391. Since
that time, and subsequent to this Court’s August 17, 2007 Order denying
Plaintiff’s original motion for a preliminary injunction, numerous
courts, including this Court, the Northern District of California, have
held that, as a result of eBay, the presumption of irreparable harm no
longer exists in the preliminary injunction context either. See e.g.
Hologic, Inc. v. Senorx, Inc., 2008 U.S. Dist LEXIS 36693 at *44-46
(N.D. Cal. April 25, 2008), Tiber Labs, LLC v. Hawthorn Pharms., Inc.,
527 F. Supp.2d 1373, 1380 (N.D. Ga 2007); Voile Mfg. Corp. v. Dandurand,
551, F.Supp.2d 1301, 1306 (D. Utah 2008); Sun Optics, Inc. v. FGX Int’l,
Inc., 2007 U.S. Dist. LEXIS 56351; 2007 WL 2228569, at *1 (D. Del.
August 2, 2007); Torspo Hockey Int’l Inc. v. Kor Hockey Ltd., 491 F.
Supp. 2d 871, 881 (D. Minn. 2007); Allora, LLC v. Brownstone, Inc., 2007
U.S. Dist. LEXIS 31343, 2007 WL 1246448 at *5 (W.D.N.C. April 27, 2007)
(copyright infringement). The Federal Circuit (citing its opinion in
this case), after canvassing the Circuit law, just days ago, affirmed
that eBay applies to preliminary injunctions in both the patent and
copyright context. Abbott Labs v. Sandoz, --F.3d--, 2008 U.S. App. LEXIS
21880, *64-*87, 2008 WL 4636167 (Fed. Cir. October 21, 2008) (“as it
stands, neither district courts, nor litigants nor panels of this court,
are provided with clear guidance, or any reason to reject the stricture
of eBay, 547 U.S. at 393, that “[n]othing in the patent Act indicates
that Congress intended such a departure from ‘the long tradition of
equity practice.’” (at *86)).

And right from the Jacobsen's mouth came this:

http://jmri.sourceforge.net/k/docket/265.pdf

"Meanwhile, the United States Supreme Court on November 12, 2008 issued
a ruling overturning the Ninth Circuit’s standard for a preliminary
injunction. Winter v. Natural Res. Def. Council, Inc., No. 07-1239, 555
U.S. __, slip op. at 12 (U.S. Nov. 12, 2008) (rejecting the “possibility
of irreparable injury” standard). Under Winter, a plaintiff seeking a
preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable injury in the
absence of preliminary relief, that the balance of the equities tips in
his favor, and that an injunction is in the public interest. Slip op. at
10. Jacobsen addresses the stricter standard in this Reply memorandum,
in addition to responding to Defendants’ Second Corrected Opposition
[Docket #264]."

regards,
alexander.

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