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

From: amicus_curious
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Thu, 8 Jan 2009 09:34:25 -0500

"Hyman Rosen" <> wrote in message news:QCa9l.102130$ly1.13222@newsfe19.iad...
Alexander Terekhov wrote:

Of the various claims, the only one relevant to this
newsgroup is the request for a preliminary injunction.
The others are patent claims, DMCA claims, attorney
fee claims, and other such irrelevancies.

The District Court appears to have decided to ignore
the meat of the opinion of the Appeals Court
while selectively reading just a bit of it and claiming
to obey it. The Appeals Court said

    "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."

Instead, the District Court decided to focus on the part
of the Appeals Court decision where the judges enumerated
some possible non-monetary considerations that an author
might benefit from, and said that a plaintiff must show
that he was specifically harmed in one of these ways. That
is exactly contrary to what the Appeals Court said above.
I predict another round trip through the appeals process.
Clearly, the District Court judge was drunk.

I think that the issue of consideration is paramount. The copyright laws exist to protect the author's ability to benefit from the author's artistic cleverness. If the author chooses not to benefit in a conventional way, the benefit that is expected must at least be defined clearly enough to determine if someone's alleged violations actually harm the author. The circuit court enumerated some possible claims that could be made and it is reasonable to require the plaintiff to demonstrate the value of those claims. There has always been a sense of balance of harms in civil litigation and it has to continue.

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