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


From: Alexander Terekhov
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Mon, 10 Aug 2009 20:29:58 +0200

Hyman Rosen wrote:
> 
> http://www.jmri.org/k/docket/289.pdf
> Selected quotes:
> 3   THE COURT: HERE'S THE CONCERN I HAVE. AGAIN, I'M
> 4 TRYING TO COMPLY AS CLOSELY AS POSSIBLE TO THE FEDERAL
> 5 CIRCUIT'S MANDATE HERE. AND THEY MADE SOME STATEMENTS ABOUT
> 6 EVEN WHEN YOU'RE DEALING WITH OPEN SOURCE SOFTWARE THE HARM IS
> 7 X, Y, Z, ALMOST -- IT'S ALMOST LIKE THEY ARE SAYING THE HARM IS
> 8 PRESUMED WHEN SOMEBODY ADMITS TO INFRINGING OPEN SOURCE
> 9 HARDWARE -- OPEN SOURCE SOFTWARE, NOT HARDWARE -- SOFTWARE.
> 10 SO -- AND THEY WERE SAYING THAT, PRESUMABLY, BASED
> 11 UPON THE RECORD THAT THEY HAD, ALTHOUGH THEY ESSENTIALLY SAID
> 12 BY REMANDING RATHER THAN DIRECTING ENTRY OF AN INJUNCTION,
> 13 WHICH THEY COULD HAVE DONE, THAT THEY WANT TO SEE THE FACTUAL
> 14 RECORD DEVELOP.
> 15 BUT DOESN'T THE LANGUAGE THAT THEY USE ABOUT THE
> 16 HARMS THAT FOLLOW FROM INFRINGEMENT OF THIS OPEN SOURCE, OPEN
> 17 SOURCE LIKE THE GOOD WILL TO THE PUBLISHER AND ALL THAT,
> 18 DOESN'T THAT TO SOME EXTENT TIE THE COURT'S HANDS?

(Transcript of Proceedings held on 12-19-08
                                   ^^^^^^^^

(Filed on 2/6/2009)

Now,

http://www.jmri.org/k/docket/284.pdf

(Filed on 1/5/2009)

"In order to grant Jacobsen a preliminary injunction, the Court must
find, based on the entire record, that Jacobsen is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest. Winter, 129 S. Ct. at
374.

. . .

Jacobsen has failed to proffer any evidence of any specific and actual
harm suffered as a result of the alleged copyright infringement and he
has failed to demonstrate that there is any continuing or ongoing
conduct that indicates future harm is imminent.3*** Because Jacobsen
fails to meet the burden of presenting evidence of actual injury to
support his claims of irreparable injury and speculative losses, the
Court cannot, on this record, grant a preliminary injunction. See
Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir.
1984) (holding that speculative harm is insufficient to establish
irreparable harm).

***)

3 Although Jacobsen makes legal arguments regarding the alleged harm he
may suffer, for instance delays and inefficiency in development and time
lost in the open source development cycle, he has failed to put forward
any evidence of such harms. Jacobsen has failed to proffer evidence of
harm suffered or any evidence of a real or immediate threat of imminent
harm in the future. The Court also finds that Jacobsen has failed to
identify with the requisite particularity the extent of his copyright
ownership over the disputed underlying material. The JMRI Project
Decoder Definition Files incorporate many manufacturers’ specifications
data as well as rights to specific terms whose copyright is owned by
Defendants. Even if Jacobsen’s heavy burden to warrant injunctive relief
had been met, it is unclear how the Court would fashion an injunction
which would be narrowly tailored to enjoin only those allegedly
infringing uses of Jacobsen’s copyrighted content.

[...]

IT IS SO ORDERED. 

Dated: January 5, 2009)
       ^^^^^^^^^^^^^^^

Go back to doctor, silly.

And let the doctor explain to you

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.)


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