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Re: SFLC files 2nd intimidation suit

From: rjack
Subject: Re: SFLC files 2nd intimidation suit
Date: Mon, 17 Dec 2007 16:58:19 -0500
User-agent: Thunderbird (Windows/20071031)

Alexander Terekhov wrote:

Alexander Terekhov wrote:
One more suit:

I suspect that SFLC will voluntary dismiss before the deadline to submit a written report listing the contract nature of the GPL as contested legal issue. :-)


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

                             -- SOFTWARE FREEDOM LAW CENTER, INC.


“4. ORDERED that counsel for all parties. . . shall set forth the following information. . . required by Fed. R. Civ. P. 26(f): b. A concise statement of each party’s position as to the basis of this Court’s juridiction of the action, with citations to all statutes relied upon and relevant facts as to citizenship
and jurisdictional amount.”

It will be interesting (to say the least) as to what personal harm the plaintiff’s have suffered so that they may invoke the District Court’s jurisdiction under Article III of the Constitution:

"A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.”; Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004).

The plaintiffs' claim:

“13. Upon information and belief, since at least November 17, 2006, Verizon has distributed to the public copies of the Firmware in the Infringing Product, and none of these distributions included source code to BusyBox or offers to provide such source code.”

Unfortunately, the GPL promises source code to “all third parties”. The class of intended beneficiaries (all third parties) specifically excludes the plaintiffs who are parties to the contract.

“[E]ven when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."; Warth v. Seldin 422 U.S. 490 (1975).


--- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332,
grants exclusive jurisdiction for infringement claims to the federal
courts, those courts construe copyrights as contracts and turn to the
relevant state law to interpret them."; Automation by Design, Inc. v.
Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals
for the Seventh Circuit 2006) ---

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