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Re: Microsoft needs a help strategy

From: Rjack
Subject: Re: Microsoft needs a help strategy
Date: Thu, 29 Jan 2009 12:31:12 -0500
User-agent: Thunderbird (Windows/20081209)

Hyman Rosen wrote:
Rjack wrote:
The contributors of the GPL'd code have no legal standing to
 > enforce the rights of third party *users*

You might want to see Patry's comments on Gomez-Arostegu's
law review article:

 From G-A's article:
    Our Supreme Court has held that as a general matter an injunction
    cannot issue if there is an adequate remedy at law. This follows,
    according to the Court, because the standard for when injunctions
    may issue derives directly from the practice of the English Court
    of Chancery around 1789, which followed the same principle. This
    Article argues that the Supreme Court’s reading of general Chancery
    custom is inapposite in copyright cases, and that, as a matter of
    historical practice, the Chancery never inquired into whether a
    copyright plaintiff had an adequate remedy at law. The remedies at
    law were deemed categorically inadequate. The Supreme Court could
    thus hold today, without running afoul of traditional equitable
    principles, that a copyright injunction can issue without regard to
    the adequacy of money damages.

As far as copyright holders being ineligible to sue because third-party
users were harmed, you might want to see the Lilly Ledbetter law that
was just passed. GPL violations cause harm to third-party users, but
they are not aware of the harm caused to them because of the very

Neither the cited article nor the Lilly Ledbetter law is even remotely related to third party standing in Article III case and controversy doctrine in the federal courts.

The GPL's legal standing problem is directly related to its fatal
flaw -- which is attempting to regulate copyrights in the domain of
the general public -- composing laws that regulate behavior in "all third parties" is reserved for Congress. That's why Congress

"The intention of section 301 is to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works coming within the scope of the Federal copyright law. The declaration of this principle in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively, and to avoid the development of any vague borderline areas between State and Federal protection."

Rjack :)

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