Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Alexander Terekhov]

Hyman Rosen wrote:
> 
> Alexander Terekhov wrote:
> > ROFL!
> > http://www.softwarefreedom.org/resources/2009/jacobsen-amicus-brief.html
> 
> Since your thought processes are not like those of
> rational human beings, I think you need to quote
> more selectively from the brief the lines you find
> amusing.

Does the following help, Hyman?

"Amicus’s request for a presumption of irreparable harm is directly
contrary to the Supreme Court’s holding in Winter

Amicus Curiae Software Freedom Law Center (Amicus) argue that a
copyright holder should be entitled to a presumption of irreparable 
harm when seeking a preliminary injunction. While this presumption 
existed at one time under federal copyright law, it was critically 
injured by the Supreme Court in eBay v. MercExchange, LLC, 547 
U.S. 388, 391 (2006) and completely eviscerated in Winter in 
late 2008. 

Footnote>> It is worthwhile to note that the open source license 
quoted in Amicus’s brief, the GNU General Public License v2.0 is 
not the license at issue in this case. See Amicus Brief at 4-5. 
The Artistic License 1.0 governed Jacobsen’s Decoder Definition 
Files during the alleged infringing conduct as discussed in detail 
in the opinion in the first appeal of this case (A1579). <<Footnote

Prior to eBay, a plaintiff seeking a preliminary injunction under 
federal copyright law who demonstrated a likelihood of success on 
the merits of a copyright claim was entitled to a presumption of 
irreparable harm. Sun Microsystems, Inc. v. Microsoft Corp., 188 
F.3d 1115, 1119 (9th Cir. 1999). In 2006, however, the Supreme 
Court eradicated 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. As time went by, federal 
courts (including this Court) applied the logic of eBay to motions 
for injunctive relief in copyright and trademark cases and also 
applied the strictures of eBay to preliminary injunctions. Katzer’s 
brief in opposition to Jacobsen’s preliminary injunction motion 
canvasses this case law.

If any doubt existed by late 2008, it was completely eviscerated by 
Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008) 
where the Supreme Court confirmed that a plaintiff seeking a 
preliminary injunction “must establish that he is likely to suffer 
irreparable harm in the absence of preliminary relief.” Winter at 
374. The Ninth Circuit has acknowledged the Supreme Court’s recent
expatiation of the proper standard for preliminary injunctive 
relief stating that the former standard used by the Ninth Circuit 
was “much too lenient” and that “[t]o the extent our cases have 
suggested a lesser standard, they are no longer controlling or even 
viable.” American Trucking Ass’ns, Inc. v. City of Los Angeles, 559 
F.3d 1046, 1052 (9th Cir. 2009). See AR 782-783.

The District Court correctly summarized the change in the legal 
standard in its Order:

Footnote>> Jacobsen does not take issue with the legal conclusion 
that the presumption of irreparable harm no longer exists for 
preliminary injunctive relief for copyright claims. <<Footnote

   Initially, when this matter was before the Court on a motion 
   for preliminary injunction, federal copyright law provided that 
   a plaintiff who demonstrates a likelihood of success on the 
   merits of a copyright claims was automatically entitled to a 
   presumption of irreparable harm... However, because of the 
   passage of time, the governing law has changed. Now, a plaintiff 
   is not granted the presumption of irreparable harm upon a showing
   of likelihood of success on the merits. Instead, a plaintiff 
   seeking a preliminary injunction must establish that... he is 
   likely to suffer irreparable harm in the absence of preliminary 
   relief... (citing Winter).

A11-A12. Amicus’s brief, however, requests that this Court ignore
controlling Supreme Court law and apply a presumption of irreparable 
harm for all preliminary injunction motions brought by open source 
license holders. Amicus state that two harms must certainly, always, 
occur the instant an open source license is violated: (1) the 
developer is deprived of the rights reserved in the license, and (2) 
the developer’s relationship with other licensees who never become 
aware of their rights is severed.

Footnote>> As discussed supra, there is no evidence in the record 
that Jacobsen suffered either of these potential harms. <<Footnote

Amicus Brief at 13. These harms are “inevitable” and “certain” and 
developers “always suffer” these harms when an open source license 
is violated. Id. Amicus are requesting that this Court presume that 
Katzer caused Jacobsen irreparable harm based solely on allegations
that infringement occurred and without the proffering of any 
evidence that any harm will likely occur. This is contrary to 
controlling law.

Amicus’s citation to authority is inapposite and unavailing. None 
of the cases cited by Amicus address the preliminary injunction 
standard post-Winter. Additionally, Amicus inaccurately cites 
Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 
1992) for the proposition that copyright doctrine favors injunctive 
relief when the resulting harm is noneconomic. Amicus Brief at 9. 
This case does not stand for this proposition at all, and, in fact, 
never mentions the word “copyright.” Regardless, Amicus’s unsupported 
statement regarding the favorability of injunctive relief is 
certainly not the state of the law post-Winter. Amicus’s request to 
apply a presumption of irreparable harm to Jacobsen is contrary to 
the law and should be rejected."

http://terekhov.de/2009-1221/AppelleeBrief.pdf

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.)