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Re: SFLC's GPL court enforcement -- track record

From: Alexander Terekhov
Subject: Re: SFLC's GPL court enforcement -- track record
Date: Sat, 08 Dec 2007 18:21:08 +0100

John Hasler wrote:
> dismissal with prejudice.  Dismissal without prejudice means that the
> plaintiff has the right to come back and reinstate his case should the
> defendant fail to comply with the terms of the settlement.

Dismissal without prejudice has absolutely nothing to do with the terms 
of out-of-court settlement, uncle Hasler. For example, consider that 
Monsoon agreed "to appoint an Open Source Compliance Officer" (they 
appointed the same support guy who provoked the whole controversy by 
confirming on myhava forum that Monsoon uses the GPL'd code while 
threatening with EULA's anti-reverse engineering provisions :-) ). Now 
suppose that Monsoon fires the poor guy and doesn't appoint another 
"Open Source Compliance Officer"... what does this have to do with the 
original complaint filed by the SFLC and which they can refile one more 
time given Voluntary Dismissal (Rule 41(a)) for the first*** time?


"We think the key to a more reasonable interpretation of the meaning 
of "operates as an adjudication upon the merits" in Rule 41(b) is to 
be found in Rule 41(a), which, in discussing the effect of voluntary 
dismissal by the plaintiff, makes clear that an "adjudication upon 
the merits" is the opposite of a "dismissal without prejudice":

  "Unless otherwise stated in the notice of dismissal or stipulation, 
  the dismissal is without prejudice, except that a notice of 
  dismissal operates as an adjudication upon the merits when filed 
  by a plaintiff who has once dismissed in any court of the United 
  States or of any state an action based on or including the same 

See also 18 Wright & Miller § 4435, at 329, n. 4 ("Both parts of Rule 
41 ... use the phrase 'without prejudice' as a contrast to 
adjudication on the merits"); 9 id., § 2373, at 396, n. 4 (" '[W]ith 
prejudice' is an acceptable form of shorthand for 'an adjudication 
upon the merits"'). See also Goddard, 14 Cal. 2d, at 54, 92 P. 2d, at 
808 (stating that a dismissal "with prejudice" evinces "[t]he 
intention of the court to make [the dismissal] on the merits"). The 
primary meaning of "dismissal without prejudice," we think, is 
dismissal without barring the plaintiff from returning later, to the 
same court, with the same underlying claim. That will also ordinarily 
(though not always) have the consequence of not barring the claim 
from other courts, but its primary meaning relates to the dismissing 
court itself. Thus, Black's Law Dictionary (7th ed. 1999) defines 
"dismissed without prejudice" as "removed from the court's docket in 
such a way that the plaintiff may refile the same suit on the same 
claim," id., at 482, and defines "dismissal without prejudice" as 
"[a] dismissal that does not bar the plaintiff from refiling the 
lawsuit within the applicable limitations period," ibid.


"Plaintiffs’ copyrights are unique and valuable property whose market
value is impossible to assess"

                             -- SOFTWARE FREEDOM LAW CENTER, INC.

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