Alexander Terekhov wrote:
http://www.osnews.com/img/22270/order.pdf
For all the folks who cheered the JMRI decision concerning the Artistic License, they would be wise to observe the Judge's words in this case: "D. Wise and the MAI Trio Conflict Irreconcilably; this Court Must Follow Wise. With two sets of conflicting precedent before the court, the question becomes which to follow. That question, at least, has a simple answer. The court must follow the oldest precedent among conflicting opinions from three-judge Ninth Circuit panels. United States v. Rodriguez-Lara, 421 F.3d 932, 943 (9th Cir. 2005). This court is loath, however, to apply this rule unless there is no way to avoid the conflict between the opinions. As was the case in the prior order, the court finds the conflict unavoidable." The CAFC's JMRI decision irreconcilably conflicts with the older CAFC panel's decision in STORAGE TECHNOLOGY CORPORATION v. CUSTOM HARDWARE ENGINEERING & CONSULTING, INC., 421 F.3d 1307 (CAFC 2005): "In light of their facts, those cases thus stand for the entirely unremarkable principle that “uses” that violate a license agreement constitute copyright infringement only when those uses would infringe in the absence of any license agreement at all." CAFC Local Rules clearly state that a three judge panel may not overrule an earlier three judge panels' precedent -- this must be done by the CAFC sitting en banc. Sincerely, Rjack _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
