http://jmri.sourceforge.net/k/docket/284.pdf
----- Jacobsens Motion for Preliminary Injunction on Copyright Claim. 1. Legal Standard. Plaintiff moves for preliminary injunction, seeking a court order enjoining Defendants from willfully infringing Plaintiffs copyrighted material. A plaintiff is entitled to a preliminary injunction when it can demonstrate either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits, where the balance of hardships tips sharply in plaintiffs favor. GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204-05 (9th Cir. 2000). To establish copyright infringement, a plaintiff must show (1) ownership of the copyrights, and (2) copying of the protected expression by Defendants. Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1109 (9th Cir. 1999). 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 claim was automatically entitled to a presumption of irreparable harm. Id. at 1119 (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. Sun, 188 F.3d at 1119 (citing Cadence, 125 F.3d at 830 (internal quotations omitted)). 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 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008) (citations omitted). In this recent case, the Supreme Court found that the Ninth Circuits standard of the likelihood of irreparable injury was too lenient and held that a plaintiff must demonstrate that irreparable injury is likely in the absence of an injunction. Id. at 375. Issuing a preliminary injunction based only a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id. at 375-76 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Because a preliminary injunction is an extraordinary remedy, [i]n each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Id. at 376 (citing Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987)). In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Id. at 376-77 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). 2. Procedural History. Plaintiff appealed this Courts denial of his original motion for preliminary injunction on the issue of copyright infringement. The Federal Circuit court found that this Court had erred in its legal finding that a copyright holder of work open and available to the public free of charge under an open source nonexclusive copyright license may not control future distribution and modification of such work under federal copyright law, but may only pursue remedies under a breach of contract theory. The Federal Circuit court found that Jacobsen may maintain a cause of action for trademark infringement based on the facts alleged in the complaint. In its decision, the appellate court found that copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material and that the Artistic License present on the JMRI Project website governed Jacobsens copyrighted material and required that any downstream user follow the restrictive terms of the license. Because the Federal Circuit found that this Court had erred in its legal finding, and, having found that the terms of the Artistic License are enforceable copyright conditions, the court vacated the denial of a preliminary injunction and remanded to enable the District Court to determine 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. Jacobsen v. Katzer, 535 F.3d at 1382-83. The Federal Circuit was faced with an incomplete record and only the allegations in the complaint, and made its determination as a matter of legal interpretation. The appellate court did not make a finding that Jacobsen is entitled to a preliminary injunction on the allegations of his complaint. It only found that this Court erred in finding that a cause of action for trademark infringement could not lie. This Court is again faced with a perfunctory record and is bound by the legal finding of the appellate decision. However, in the intervening time, the Supreme Court precedent governing the standard to be applied in deciding whether the extraordinary remedy of a preliminary injunction is appropriate has changed. This Court is bound by such intervening authority. In order to grant Jacobsen a preliminary injunction, the Court must find, based on the entire record, that Jacobsen is likely to succeed of the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 129 S. Ct. at 374. 3. Jacobsen Fails to Meet Heightened Burden of Demonstrating Harm. In its opinion, the Federal Circuit found that in the open source field, there are potential harms to copyright holders, although they may not be exclusively monetary. The court found that the lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. Jacobsen v. Katzer, 535 F.3d at 1379. On this basis, the court found that there could indeed be harm based exclusively on a copyright infringement theory. However, the Federal Circuit did not find, based on the record of this case, that there was indeed either actual, current infringement or that there was a likelihood of irreparable harm that tipped the balance of equities in Jacobsens favor. The Federal Circuit courts list of potential harms that a copyright holder may face in the open source field are just that potential harms. There is no showing on the record before this Court that Jacobsen has actually suffered any of these potential harms. The standard under Winter requires that Jacobsen demonstrate, by the introduction of admissible evidence and with a clear likelihood of success that the harm is real, imminent and significant, not just speculative or potential. 129 S. Ct. at 374. Jacobsen has failed to proffer any evidence of any specific and actual harm suffered as a result of the alleged copyright infringement and he has failed to demonstrate that there is any continuing or ongoing conduct that indicates future harm is imminent.3 Because Jacobsen fails to meet the burden of presenting evidence of actual injury to support his claims of irreparable injury and speculative losses, the Court cannot, on this record, grant a preliminary injunction. See Goldies Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) (holding that speculative harm is insufficient to establish irreparable harm). 3 Although Jacobsen makes legal arguments regarding the alleged harm he may suffer, for instance delays and inefficiency in development and time lost in the open source development cycle, he has failed to put forward any evidence of such harms. Jacobsen has failed to proffer evidence of harm suffered or any evidence of a real or immediate threat of imminent harm in the future. The Court also finds that Jacobsen has failed to identify with the requisite particularity the extent of his copyright ownership over the disputed underlying material. The JMRI Project Decoder Definition Files incorporate many manufacturers specifications data as well as rights to specific terms whose copyright is owned by Defendants. Even if Jacobsens heavy burden to warrant injunctive relief had been met, it is unclear how the Court would fashion an injunction which would be narrowly tailored to enjoin only those allegedly infringing uses of Jacobsens copyrighted content. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants motion to dismiss for mootness; GRANTS IN PART AND DENIES IN PART Defendants motion to dismiss for failure to state a claim; DENIES the motion to strike; and DENIES Jacobsens motion for preliminary injunction. Jacobsen may file an amended complaint within twenty days of the date of this Order. If Jacobsen does not file a third amended complaint, Defendants shall file an answer within twenty days of the deadline to file the amended complaint. If Jacobsen elects to file a third amended complaint in accordance with this Order, Defendants shall either file an answer or move to dismiss within twenty days of service of the third amended complaint. ----- <chuckles> 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
