The SFLC is eager to cite Second Circuit authority when it suits its purposes:
"...[T]he Second Circuit in Salinger abrogated the longstanding practice of presuming irreparable harm based upon the plaintiff's prima facie claim of copyright infringement... [T]he Second Circuit has approved of this practice. See e.g., Pharmaceutical Soc'y of New York, Inc. v. New York StateDept. of Soc. Servs., 50 F.3d 1168, 1174-75 (2d Cir. 1995)."; Plaintiff's Memorandum on Motion. But when it doesn't suit it purpose the SFLC chooses to utterly ignore Second Circuit precedent such as: "One party's breach does not automatically cause recission of a bilateral contract. See Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir.1996) (recognizing "the rule applied in other circuits that once a non-breaching party to an express copyright license obtains and exercises a right of rescission by virtue of a material breach of the agreement, any further distribution of the copyrighted material would constitute infringement") (emphasis added); Hyman v. Cohen, 73 So.2d 393, 397 (Fla.1954) (" "A material breach, as where the breach goes to the whole consideration of the contract, gives to the injured party the right to rescind the contract or to treat it as a breach of the entire contract....' ") (quoting 12 Am.Jur. Contracts § 389) (emphasis added); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.15[A], at 10-125-126 (1996) (" Upon such rescission, the assignment or license is terminated and the copyright proprietor may hold his former grantee liable as an infringer for subsequent use of the work.") (emphasis added)." Now, the SFLC utterly ignores the circuit precedent and claims: "Further, once Best Buy made a distribution of BusyBox that did not comply with the license terms, the license terminated, and therefore any further act of copying or distributing BusyBox by Best Buy (even if in compliance with the license) is without Andersen's permission. Andersen Decl. Ex. 2, § 4 (“You may not copy, modify, sublicense, or distribute [BusyBox] except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute [BusyBox] is void, and will automatically terminate your rights under this License.”)."; Plainiff's Reply Memeorandum. The games have begun! Sincerely, RJack :) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss