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Re: SFLC files 2nd intimidation suit

From: rjack
Subject: Re: SFLC files 2nd intimidation suit
Date: Mon, 26 Nov 2007 08:34:38 -0500
User-agent: Thunderbird (Windows/20071031)

Alexander Terekhov wrote:

See also:
(Artistic License is a contract)

"the Court finds that Plaintiff's claim properly sounds in contract"

The Court ruled in the JMRI case (supra):

"Although the state claims are subject to dismissal on the merits for lack of standing and for failure to state a claim upon which relief can be granted, the Court also finds that the two counts are preempted by federal copyright law, to the extent Plaintiff makes out a claim for copyright infringement. Section 301 of the Federal Copyright Act provides in pertinent part:

'all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.'

17 U.S.C. § 301. The federal copyright preemption of overlapping state law claims is 'explicit and broad'. . .

Accordingly, to the extent Plaintiff makes out a claim for copyright infringement, Counts Five and Ten are preempted by federal copyright law, and are thereby dismissed on this alternate basis without leave to amend."; JACOBSEN v. KATZER, No. C 06-01905 JSW, (ND Cal. 2007).

The SFLC knows that preemption prevents enforcement of the GPL. So they
have mapped a strategy in which they claim "automatic termination" and rescission of the GPL contract -- hoping the court won't examine the GPL on it's legal merits. Unfortunately for the SFLC, in the Second Federal Circuit the law is:

“. . . rescission of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (”New York law does not presume the rescission or abandonment of a contract and the party asserting rescission or abandonment has the burden of proving it”).”; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. April 30, 2007).

It doesn't get much more desperate (or morally bankrupt) than attempting to enforce an illegal contract (like the GPL) by fiat.


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