Re: SFLC is SOL

[Hyman Rosen]

On 3/16/2010 12:46 PM, RJack wrote:
> Plaintiffs Humax, Western Digital, JVC, Versa and Best BUy correctly
> asserted that the plaintiffs lack standing to bring the GPL claims.

No, they are incorrect in their claim.

> The GPL attempts to grant benefits to all "third parties"
> (hence the name "Public License"). Nowhere in the GPL is either actual
> party (i.e. non-third party) to the contract named as a benificiary.
> Thus the plaintiffs have no Article III standing since they are not
> conract beneficiaries.

This argument is backwards. The plaintiffs are not beneficiaries
of the GPL, they are copyright holders of the covered work.

> "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.”

<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
    Copyright holders who engage in open source licensing have the right
    to control the modification and distribution of copyrighted material.
    As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21
    (2d Cir. 1976), the "unauthorized editing of the underlying work, if
    proven, would constitute an infringement of the copyright in that work
    similar to any other use of a work that exceeded the license granted
    by the proprietor of the copyright." Copyright licenses are designed
    to support the right to exclude; money damages alone do not support or
    enforce that right. 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.