Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:
> On 4/12/2010 8:36 PM, amicus_curious wrote:
> > Now consider that the binary form of a software program is the 
> > image. Then the computer used to compile the software binary is, in
> >  effect, the camera and the source code is the directions on where
> >  to stand and where to point the camera. Is that source code 
> > protected as a unique expression, too? I don't think that question
> >  has been answered in court as yet.
> [...]
> > If you go back to the first principles and see where the copyright
> >  is to protect the artist's expression and reason that is mainly
> > due to protecting the artist's income from his work, the problem
> > gets even more cloudy when there is no financial benefit accruing
> > to the artist in the open source world. No damage, no compensation
> > in the contracts world, hence the insistence that the GPL is not a
> >  contract.
>
> <http://www.cafc.uscourts.gov/opinions/08-1001.pdf> In the JMRI 
> decision, the CAFC said: Copyright licenses are designed to support 
> the right to exclude; money damages alone do not support or enforce 
> that right. The choice to exact consideration in the form of 
> compliance with the open source requirements of disclosure and 
> explanation of changes, rather than as a dollar-denominated fee, is 
> entitled to no less legal recognition. Indeed, because a calculation
>  of damages is inherently speculative, these types of license 
> restrictions might well be rendered meaningless absent the ability to
>  enforce through injunctive relief.

1) The SFLC is being tried in a federal district in the Second Circuit
not in the CAFC:

"In Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909
(Fed.Cir.1984), this court said:

Accordingly, we deem it appropriate here to decide non-patent matters in
the light of the problems faced by the district court from which each
count originated, including the law there applicable. In this manner, we
desire to avoid exacerbating the problem of intercircuit conflicts in
non-patent areas. A district court judge should not be expected to look
over his shoulder to the law in this circuit, save as to those claims
over which our subject matter jurisdiction is exclusive. [Footnote omitted.]

The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and in
this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223 USPQ
1074 (Fed. Cir. 1984) (en banc)

The JMRI case would be useful as toilet paper (and nothing more) in the
Second Circuit.

As to damages provable, here's the law:

"In Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992), we
held that, to satisfy Article III’s standing requirements, a plaintiff
must show (1) it has suffered an “injury in fact” that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision."
Friends of the Earth, Inc. et al. v. Laidlaw Environmental Services,
Inc., 528 U.S. 167 (2000)

Let's you and I review the Supreme Court's holding, Hyman.

"... (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical;..."

Which part of "concrete and particularized" and "not conjectural or
hypothetical" is escaping your cognitive abilities Hyman?

Sincerely,
RJack :)