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Re: JMRI case -- Implementation of the Federal Circuit's Opinion
From: |
Alexander Terekhov |
Subject: |
Re: JMRI case -- Implementation of the Federal Circuit's Opinion |
Date: |
Fri, 31 Jul 2009 15:41:12 +0200 |
Hyman Rosen wrote:
>
> Alexander Terekhov wrote:
> > ROFL!
> > http://www.softwarefreedom.org/resources/2009/jacobsen-amicus-brief.html
>
> Since your thought processes are not like those of
> rational human beings, I think you need to quote
> more selectively from the brief the lines you find
> amusing.
Does the following help, Hyman?
"Amicuss request for a presumption of irreparable harm is directly
contrary to the Supreme Courts holding in Winter
Amicus Curiae Software Freedom Law Center (Amicus) argue that a
copyright holder should be entitled to a presumption of irreparable
harm when seeking a preliminary injunction. While this presumption
existed at one time under federal copyright law, it was critically
injured by the Supreme Court in eBay v. MercExchange, LLC, 547
U.S. 388, 391 (2006) and completely eviscerated in Winter in
late 2008.
Footnote>> It is worthwhile to note that the open source license
quoted in Amicuss brief, the GNU General Public License v2.0 is
not the license at issue in this case. See Amicus Brief at 4-5.
The Artistic License 1.0 governed Jacobsens Decoder Definition
Files during the alleged infringing conduct as discussed in detail
in the opinion in the first appeal of this case (A1579). <<Footnote
Prior to eBay, a plaintiff seeking a preliminary injunction under
federal copyright law who demonstrated a likelihood of success on
the merits of a copyright claim was entitled to a presumption of
irreparable harm. Sun Microsystems, Inc. v. Microsoft Corp., 188
F.3d 1115, 1119 (9th Cir. 1999). In 2006, however, the Supreme
Court eradicated the presumption of irreparable harm to motions for
permanent injunctions in the patent infringement context, holding
that a Plaintiff seeking a permanent injunction must demonstrate
that the traditional equitable factors for granting an injunction
have been met. eBay Inc., 547 U.S. at 391. As time went by, federal
courts (including this Court) applied the logic of eBay to motions
for injunctive relief in copyright and trademark cases and also
applied the strictures of eBay to preliminary injunctions. Katzers
brief in opposition to Jacobsens preliminary injunction motion
canvasses this case law.
If any doubt existed by late 2008, it was completely eviscerated by
Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)
where the Supreme Court confirmed that a plaintiff seeking a
preliminary injunction must establish that he is likely to suffer
irreparable harm in the absence of preliminary relief. Winter at
374. The Ninth Circuit has acknowledged the Supreme Courts recent
expatiation of the proper standard for preliminary injunctive
relief stating that the former standard used by the Ninth Circuit
was much too lenient and that [t]o the extent our cases have
suggested a lesser standard, they are no longer controlling or even
viable. American Trucking Assns, Inc. v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009). See AR 782-783.
The District Court correctly summarized the change in the legal
standard in its Order:
Footnote>> Jacobsen does not take issue with the legal conclusion
that the presumption of irreparable harm no longer exists for
preliminary injunctive relief for copyright claims. <<Footnote
Initially, when this matter was before the Court on a motion
for preliminary injunction, federal copyright law provided that
a plaintiff who demonstrates a likelihood of success on the
merits of a copyright claims was automatically entitled to a
presumption of irreparable harm... However, because of the
passage of time, the governing law has changed. Now, a plaintiff
is not granted the presumption of irreparable harm upon a showing
of likelihood of success on the merits. Instead, a plaintiff
seeking a preliminary injunction must establish that... he is
likely to suffer irreparable harm in the absence of preliminary
relief... (citing Winter).
A11-A12. Amicuss brief, however, requests that this Court ignore
controlling Supreme Court law and apply a presumption of irreparable
harm for all preliminary injunction motions brought by open source
license holders. Amicus state that two harms must certainly, always,
occur the instant an open source license is violated: (1) the
developer is deprived of the rights reserved in the license, and (2)
the developers relationship with other licensees who never become
aware of their rights is severed.
Footnote>> As discussed supra, there is no evidence in the record
that Jacobsen suffered either of these potential harms. <<Footnote
Amicus Brief at 13. These harms are inevitable and certain and
developers always suffer these harms when an open source license
is violated. Id. Amicus are requesting that this Court presume that
Katzer caused Jacobsen irreparable harm based solely on allegations
that infringement occurred and without the proffering of any
evidence that any harm will likely occur. This is contrary to
controlling law.
Amicuss citation to authority is inapposite and unavailing. None
of the cases cited by Amicus address the preliminary injunction
standard post-Winter. Additionally, Amicus inaccurately cites
Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir.
1992) for the proposition that copyright doctrine favors injunctive
relief when the resulting harm is noneconomic. Amicus Brief at 9.
This case does not stand for this proposition at all, and, in fact,
never mentions the word copyright. Regardless, Amicuss unsupported
statement regarding the favorability of injunctive relief is
certainly not the state of the law post-Winter. Amicuss request to
apply a presumption of irreparable harm to Jacobsen is contrary to
the law and should be rejected."
http://terekhov.de/2009-1221/AppelleeBrief.pdf
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/29
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion,
Alexander Terekhov <=
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Hyman Rosen, 2009/07/31
- Re: JMRI case -- Implementation of the Federal Circuit's Opinion, Alexander Terekhov, 2009/07/31