Re: SFLC is SOL

[RJack]

Hyman Rosen wrote:
> On 3/16/2010 12:27 PM, RJack wrote:
> > "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.


"Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909
(Fed.Cir.1984), this court said:

Accordingly, we deem it appropriate here to decide non-patent matters in
the light of the problems faced by the district court from which each
count originated, including the law there applicable. In this manner, we
desire to avoid exacerbating the problem of intercircuit conflicts in
non-patent areas. A district court judge should not be expected to look
over his shoulder to the law in this circuit, save as to those claims
over which our subject matter jurisdiction is exclusive. [Footnote omitted.]

The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and in
this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223 USPQ
1074 (Fed. Cir. 1984) (en banc).
Sincerely,
RJack :)