http://jmri.net/k/docket/227.pdf
Jacobsen says: -------- Implementation of Federal Circuit Ruling Jacobsen has proposed an injunction, which is attached as Exhibit A. The original motion for preliminary injunction sought to enjoin infringement of JMRI Decoder Definitions 1.7.1. Jacobsen asks the Court to expand the preliminary injunction to cover all versions of JMRI software. Jacobsen will also ask the Court to enjoin Defendants from violation Sec. 1202. Defendants argue that they need further briefing relating to irreparable harm. Plaintiff addressed irreparable harm and balance of hardships in his motion, so Defendants had the opportunity to address the issues then. Also, as noted earlier, Defendants have arguedand continue to argue in their motions to strikethat Plaintiff is not entitled to monetary damages. Thus, Defendants admit damages are inadequate, which is an important factor in favor of the issuance of an injunction. Furthermore, the eBay decision issued 18 months ago, so again Defendants have had long enough to file a surreply to discuss eBay. To delay the injunction until further briefing is complete is to draw this case out further and waste judicial resources. The preliminary injunction should issue. Jacobsens copyright covers JMRI materials. If Defendants make copies or derivative works, or distribute JMRI materials, then Defendants are infringing. Defendants products do not work unless they use a range of decoder definition files, such as that which JMRI provides. Thus, Defendants are motivated to use JMRI materials as a basis for their products. Having already been found to infringe JMRI materials, Defendants must provide documentation that they have independently created their products, in order to bar an injunction. They had provided nothing. Thus, the injunction should issue. -------- Katzer says: -------- Kamind Associates, Inc. and Matthew Katzer (collectively referred to as Katzer) disagree with the entirety of Plaintiffs statement above and the attached Exhibit A and submit the following regarding the recent decision of the Federal Circuit: [...] Implementation of the Federal Circuits Opinion The Federal Circuits August 13, 3008 Opinion remands this case to this Court for further findings on whether Jacobsen has demonstrated (1) a likelihood of success on the merits and either a presumption of irreparable harm or a demonstration of irreparable harm; or (2) a fair chance of success on the merits and a clear disparity in the relative hardships and tipping in his favor. Opinion at 15. This Court did not reach these questions in its August 17, 2007 Order denying Plaintiffs Motion for a Preliminary Injunction. Since this Court held that Plaintiffs claim sounds only in contract, this Court concluded: therefore Plaintiff has not met his burden of demonstrating likelihood of success on the merits of his copyright claim and is therefore not entitled to a presumption of irreparable harm. See Sun Microsystems, 188 F.3d at 1119. Plaintiff has not met his burden of demonstrating either a combination of probable success on the merits of his copyright claim nor the existence of serious questions going to the merits. See GoTo.com, 202 F.3d at 1204-1205. Order Denying Plaintiffs Motion forPreliminary Injunction at 11 [Dkt. #158]. The Federal Circuit has held that Plaintiff has a viable copyright claim, therefore these conclusions regarding irreparable harm and success on the merits must be revisited by this Court. To complicate matters, the law regarding the test for irreparable harm for a preliminary injunction in the copyright law context has changed dramatically since this Court issued its August 17, 2007 Order. In its Order, this Court noted that: Under federal copyright law, however, a plaintiff who demonstrates a likelihood of success on the merits of a copyright claim is entitled to a presumption of irreparable harm. Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999), citing Cadence Design Systems v. Avant! Corp., 125 F.3d 824, 826-27 (9th Cir. 1997). That presumption means that the balance of hardships issue cannot be accorded significant-if any-weight in determining whether a court should enter a preliminary injunction to prevent the use of infringing material in cases where the plaintiff has made a strong showing of likely success on the merits. Order Denying Plaintiffs Motion forPreliminary Injunction at 8 [Dkt. #158]. In 2006, the Supreme Court eviscerated 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. v. MercExchange, LLC, 547 U.S. 388, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006). Since that time, and subsequent to this Courts August 17, 2007 Order, numerous courts, including this Court, the Northern District of California, have held that, as a result of eBay, the presumption of irreparable harm no longer exists in the preliminary injunction context either. See e.g. Hologic, Inc. v. Senorx, Inc., 2008 U.S. Dist LEXIS 36693 at *44-46 (N.D. Cal. April 25, 2008), Tiber Labs, LLC v. Hawthorn Pharms., Inc., 527 F. Supp.2d 1373, 1380 (N.D. Ga 2007); Voile Mfg. Corp. v. Dandurand, 551, F.Supp.2d 1301, 1306 (D. Utah 2008); Sun Optics, Inc. v. FGX Intl, Inc., 2007 U.S. Dist. LEXIS 56351, 2007 WL 2228569, at *1 (D. Del. August 2, 2007); Torspo Hockey Intl Inc. v. Kor Hockey Ltd., 491 F. Supp. 2d 871, 881 (D. Minn. 2007); Allora, LLC v. Brownstone, Inc., 2007 U.S. Dist. LEXIS 31343 (W.D.N.C. April 27, 2007) (copyright infringement). Additionally, a district court in the Ninth Circuit has recently held that no presumption of irreparable harm results from a finding of liability in a copyright case following eBay. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d. 1197, 1210-1214. (C.D. Cal. 2007). Therefore, Katzer believes that the cases cited in this Courts August 17, 2007 Order regarding the presumption of irreparable harm are no longer good law post-eBay. As a consequence, Katzer believes that Plaintiff is now required to meet his burden of demonstrating irreparable harm and can no longer rest on this former presumption as he did in his papers in support of his motion for preliminary injunction. Additionally, Katzer believes that since the presumption of irreparable harm is gone, it is now necessary for the Court to make findings on the balance of hardships between the parties should an injunction issue, and for Katzer to introduce evidence into the record regarding the hardship imposed by a preliminary injunction from this Court. Since Plaintiff must now prove irreparable harm and Katzer is entitled to introduce evidence of the hardship created by an injunction, Katzer believes that a hearing is necessary for the introduction of this evidence before any injunction can issue. See Fed. Rule Civ. P. 65. Katzer also requests that he be allowed to provide this Court additional legal briefing on why the presumption of irreparable harm no longer exists in a copyright preliminary injunction proceeding following eBay and how it is not possible for Plaintiff to demonstrate irreparable harm in this case. Lastly, Plaintiff must prove a likelihood of success on the merits or a fair chance of success on the merits of his copyright claim. Plaintiff has not yet specifically identified the copyrighted material that is the subject of the proposed motion and Plaintiffs attached Exhibit A broadens significantly the scope of the injunction from the original motion. Therefore, further findings must be made by this Court to determine whether Plaintiff has met his burden on the merits issue and the scope of any proposed injunction. Katzer proposes the following briefing schedule on the preliminary injunction motion: October 3, 2008: Plaintiff submits Supplemental Memorandum in Support of Motion for Preliminary Injunction November 7, 2008: Defendant submits Supplemental Memorandum in Opposition November 21, 2008: Plaintiff submits Reply December 13, 2008: Evidentiary hearing on Plaintiffs Motion for Preliminary Injunction -------- 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.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
