Re: SFLC files 2nd intimidation suit
Alexander Terekhov wrote: Developments... Alexander Terekhov wrote: One more suit: http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf http://www.terekhov.de/GPLvVerizon/INITIAL_CONFERENCE_ORDER.pdf I suspect that SFLC will voluntary dismiss before the deadline to submit a written report listing the contract nature of the GPL as contested legal issue. :-) regards, alexander. -- "Plaintiffs’ copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. From the INITIAL CONFERENCE ORDER: “4. ORDERED that counsel for all parties. . . shall set forth the following information. . . required by Fed. R. Civ. P. 26(f): b. A concise statement of each party’s position as to the basis of this Court’s juridiction of the action, with citations to all statutes relied upon and relevant facts as to citizenship and jurisdictional amount.” It will be interesting (to say the least) as to what personal harm the plaintiff’s have suffered so that they may invoke the District Court’s jurisdiction under Article III of the Constitution: "A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. . . But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.”; Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004). The plaintiffs' claim: “13. Upon information and belief, since at least November 17, 2006, Verizon has distributed to the public copies of the Firmware in the Infringing Product, and none of these distributions included source code to BusyBox or offers to provide such source code.” Unfortunately, the GPL promises source code to “all third parties”. The class of intended beneficiaries (all third parties) specifically excludes the plaintiffs who are parties to the contract. “[E]ven when the plaintiff has alleged injury sufficient to meet the "case or controversy" requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties."; Warth v. Seldin 422 U.S. 490 (1975). Regards, rjack --- "Although the United States Copyright Act, 17 U.S.C. §§ 101- 1332, grants exclusive jurisdiction for infringement claims to the federal courts, those courts construe copyrights as contracts and turn to the relevant state law to interpret them."; Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United States Court of Appeals for the Seventh Circuit 2006) --- ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Developments... Alexander Terekhov wrote: > > One more suit: > > http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf http://www.terekhov.de/GPLvVerizon/INITIAL_CONFERENCE_ORDER.pdf I suspect that SFLC will voluntary dismiss before the deadline to submit a written report listing the contract nature of the GPL as contested legal issue. :-) regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
mike3 wrote: On Nov 24, 9:19 am, rjack <[EMAIL PROTECTED]> wrote: Tim Smith wrote: On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: The designated donee beneficiaries of the GPL are obviously "all third parties". Clearly the plaintiffs are "parties" to the GPL contract and cannot be a member of the class "all third parties." Therefore the plaintiffs can suffer no injury by the source code not being made available to "all third parties". Their injury is the use of the copyrighted work in a manner that they have not agreed to. To constitute copyright infringement an action must be capable of violating an author's 17 USC sec. 106 exclusive rights in the absence of any license at all. Requiring distribution of another author's modifications in a derivative work is not one of the exclusive rights enumerated under 17 USC sec. 106 and cannot lead to a charge of "copyright infringement". The alleged violation of the GPL (failure to distribute another author's modifications) is a contractual requirement that names it's designated donee beneficiaries as "all third parties". :) The creation and release of derivative works is an exclusive right of the copyright owner (barring various "fair use" exceptions.). The GPL is a grant of permission to do it provided certain requirements are met, namely that all derivative works must are licensed under the GPL. Failure to meet that requirement renders the permission null and void, as the use is now outside it's scope and hence restricted by default by the copyright law. The creation and release of derivative works is an exclusive right of the copyright owner (barring various "fair use" exceptions.). Creation yes. . . "release" maybe. The GPL is a grant of permission to do it provided certain requirements are met, namely that all derivative works must are licensed under the GPL. Failure to meet that requirement renders the permission null and void, as the use is now outside it's scope and hence restricted by default by the copyright law. Sure ain't so. :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
On Nov 24, 9:19 am, rjack <[EMAIL PROTECTED]> wrote: > Tim Smith wrote: > > On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: > >> The designated donee beneficiaries of the GPL are obviously "all third > >> parties". Clearly the plaintiffs are "parties" to the GPL contract and > >> cannot be a member of the class "all third parties." Therefore the > >> plaintiffs can suffer no injury by the source code not being made > >> available to "all third parties". > > Their injury is the use of the copyrighted work in a manner that they > > have not agreed to. > > To constitute copyright infringement an action must be capable of > violating an author's 17 USC sec. 106 exclusive rights in the absence of > any license at all. > > Requiring distribution of another author's modifications in a derivative > work is not one of the exclusive rights enumerated under 17 USC sec. 106 > and cannot lead to a charge of "copyright infringement". > > The alleged violation of the GPL (failure to distribute another author's > modifications) is a contractual requirement that names it's designated > donee beneficiaries as "all third parties". > > :) The creation and release of derivative works is an exclusive right of the copyright owner (barring various "fair use" exceptions.). The GPL is a grant of permission to do it provided certain requirements are met, namely that all derivative works must are licensed under the GPL. Failure to meet that requirement renders the permission null and void, as the use is now outside it's scope and hence restricted by default by the copyright law. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
One more suit: http://www.softwarefreedom.org/news/2007/dec/07/busybox/verizon.pdf Number 4. regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Rui Miguel Silva Seabra wrote:
On Wed, Nov 21, 2007 at 08:42:12AM -0500, rjack wrote:
Alexander Terekhov wrote:
If either case filed is heard before a judge, it would be the first time
that a GPL infringement lawsuit has gone to trial in the U.S.
The SFLC will NEVER, NEVER allow their bluff to be called by "going to
trial". If they did, the Court (perhaps sua sponte) would dismiss for lack
of plaintiff's standing. The SFLC will voluntarily dismiss before any Rule
12 Motion to Dismiss is ever filed.
I suppose in your view all other lawyers are definitely dumb ('cause
you're so damn smart) and they didn't study law at all and get all
frightened for nothing then.
To me, since they have always agreed to fulfill their obligations, pay
damages, etc... it would seem like the lawyers concluded that whatever
the outcome would be, they would be in a much worse shape by not complying
with the Fair Terms of The License, and decided not to suffer the (court
mandated) consequences.
That's the best way you win in "court": buy not getting to court.
Rui
I suppose in your view all other lawyers are definitely dumb ('cause
you're so damn smart) and they didn't study law at all and get all
frightened for nothing then.
I don't all lawyers are dumb. You have mistaken me for the late Chief
Justice Warren Burger, who lamented, "75 to 90 percent of American trial
lawyers are incompetent, dishonest, or both."
Since I have never seen evidence of defendant's counsel of record
appearing in any case filed by the SFLC perhaps you will enlighten me as
to who those poor frightened ambulance chasers might be.
:)
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Re: SFLC files 2nd intimidation suit
On Wed, Nov 21, 2007 at 08:42:12AM -0500, rjack wrote:
> Alexander Terekhov wrote:
>> If either case filed is heard before a judge, it would be the first time
>> that a GPL infringement lawsuit has gone to trial in the U.S.
>
> The SFLC will NEVER, NEVER allow their bluff to be called by "going to
> trial". If they did, the Court (perhaps sua sponte) would dismiss for lack
> of plaintiff's standing. The SFLC will voluntarily dismiss before any Rule
> 12 Motion to Dismiss is ever filed.
I suppose in your view all other lawyers are definitely dumb ('cause
you're so damn smart) and they didn't study law at all and get all
frightened for nothing then.
To me, since they have always agreed to fulfill their obligations, pay
damages, etc... it would seem like the lawyers concluded that whatever
the outcome would be, they would be in a much worse shape by not complying
with the Fair Terms of The License, and decided not to suffer the (court
mandated) consequences.
That's the best way you win in "court": buy not getting to court.
Rui
--
Pzat!
Today is Sweetmorn, the 39th day of The Aftermath in the YOLD 3173
+ No matter how much you do, you never do enough -- unknown
+ Whatever you do will be insignificant,
| but it is very important that you do it -- Gandhi
+ So let's do it...?
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Re: SFLC files 2nd intimidation suit
Alexander Terekhov wrote: See also: http://jmri.sourceforge.net/k/docket/158.pdf (Artistic License is a contract) "the Court finds that Plaintiff's claim properly sounds in contract" The Court ruled in the JMRI case (supra): "Although the state claims are subject to dismissal on the merits for lack of standing and for failure to state a claim upon which relief can be granted, the Court also finds that the two counts are preempted by federal copyright law, to the extent Plaintiff makes out a claim for copyright infringement. Section 301 of the Federal Copyright Act provides in pertinent part: 'all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.' 17 U.S.C. § 301. The federal copyright preemption of overlapping state law claims is 'explicit and broad'. . . Accordingly, to the extent Plaintiff makes out a claim for copyright infringement, Counts Five and Ten are preempted by federal copyright law, and are thereby dismissed on this alternate basis without leave to amend."; JACOBSEN v. KATZER, No. C 06-01905 JSW, (ND Cal. 2007). The SFLC knows that preemption prevents enforcement of the GPL. So they have mapped a strategy in which they claim "automatic termination" and rescission of the GPL contract -- hoping the court won't examine the GPL on it's legal merits. Unfortunately for the SFLC, in the Second Federal Circuit the law is: “. . . rescission of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (”New York law does not presume the rescission or abandonment of a contract and the party asserting rescission or abandonment has the burden of proving it”).”; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. April 30, 2007). It doesn't get much more desperate (or morally bankrupt) than attempting to enforce an illegal contract (like the GPL) by fiat. :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Tim Smith wrote: On 2007-11-24, rjack <[EMAIL PROTECTED]> wrote: Tim Smith wrote: On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: The designated donee beneficiaries of the GPL are obviously "all third parties". Clearly the plaintiffs are "parties" to the GPL contract and cannot be a member of the class "all third parties." Therefore the plaintiffs can suffer no injury by the source code not being made available to "all third parties". Their injury is the use of the copyrighted work in a manner that they have not agreed to. To constitute copyright infringement an action must be capable of violating an author's 17 USC sec. 106 exclusive rights in the absence of any license at all. Requiring distribution of another author's modifications in a derivative work is not one of the exclusive rights enumerated under 17 USC sec. 106 and cannot lead to a charge of "copyright infringement". The preparation of that derivative work in the first place is one of the exclusive rights under 17 USC 106. *Preparation* is a 17 USC 106 exclusive right. *Distribution* of a derivate work prepared by an authorized modifying author is a contractual matter between the original and modifying authors. :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Tim Smith wrote:
>
> On 2007-11-24, rjack <[EMAIL PROTECTED]> wrote:
> > Tim Smith wrote:
> >> On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote:
> >>> The designated donee beneficiaries of the GPL are obviously "all third
> >>> parties". Clearly the plaintiffs are "parties" to the GPL contract and
> >>> cannot be a member of the class "all third parties." Therefore the
> >>> plaintiffs can suffer no injury by the source code not being made
> >>> available to "all third parties".
> >
> >
> >> Their injury is the use of the copyrighted work in a manner that they
> >> have not agreed to.
> >
> >
> > To constitute copyright infringement an action must be capable of
> > violating an author's 17 USC sec. 106 exclusive rights in the absence of
> > any license at all.
> >
> > Requiring distribution of another author's modifications in a derivative
> > work is not one of the exclusive rights enumerated under 17 USC sec. 106
> > and cannot lead to a charge of "copyright infringement".
>
> The preparation of that derivative work in the first place is one of the
> exclusive rights under 17 USC 106.
Not really much exclusive regarding software, Tim. 17 USC 117.
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
What it says is that even under contractual restrictions of statutory
rights, 17 USC 117 bars cause of action for copyright infringement when
"the party exercises sufficient incidents of ownership over a copy of
the program to be sensibly considered the owner of the copy for purposes
of § 117(a)." Same as with 17 USC 109. Now, that, of course, doesn't
preclude cause of action for breach of contract... but we all know that
according to SFLC's own Chairman and Director-Counsel, the GPL is "a
license NOT a contract." LOL.
-
While a party that owns copyright rights is ordinarily entitled to
pursue infringement claims against any third party who violates them,
the courts have recognized that the rights and remedies available to
copyright holders change significantly when the owner elects to give
others a nonexclusive license to use such property. In that situation,
the owner/user relationship is fundamentally different. Absent a
license, the rights of the copyright holder are governed by statutory
and common law rules applicable to such rights. With a license,
however, the terms and covenants of the license establish the
applicable rules. See Effects Associates, Inc. v. Cohen , 908 F.2d
555, 559 (9th Cir. 1990) (in granting a copyright license, the
licensor gives up its right to sue the licensee for infringement).
Recognizing that the existence of consensual licensing arrangements
significantly changes the applicable rules and the expectations of
the parties, federal courts have held that a party cannot normally
pursue a copyright infringement action based upon the licensees
breach of covenants in the license agreement. As a general rule, "if
the [licensees] improper conduct constitutes a breach of a covenant
undertaken by the licensee . . . and if such covenant constitutes an
enforceable contractual obligation, then the licensor will have the
cause of action for contract," not for copyright infringement. Graham
v. James , 144 F.3d 229, 236-37 (2d Cir. 1998) quoting 3 Melville B.
Nimmer & David Nimmer, Nimmer on Copyright, 10.15[A] at 10-120
(1998); see also Kolbe v. Trudel , 945 F. Supp. 1268, 1270-71
(D. Ariz. 1996). As the Ninth Circuit explained in Topolos v.
Caldewey, 698 F.2d 991, 993 (9th Cir. 1983):
[A] case does not arise under the federal copyright laws . . .
merely because the subject matter of the action involves or affects
a copyright.
-
See also:
http://jmri.sourceforge.net/k/docket/158.pdf
(Artistic License is a contract)
"the Court finds that Plaintiff's claim properly sounds in contract"
Also worth noting is IBM's motion in SCO v. IBM:
"SCO's GPL violations entitle IBM to at least nominal damages on
the Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design
LLC 20 P.3d 388, 392 (Utah 2001) (explaining that it is "well
settled" that nominal damages are recoverable upon breach of
contract); Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)
("Nominal damages are always available in breach of contract
action".). "
regards,
alexander.
--
"Plaintiffs copyrights are unique and valuable property whose market
value is impossible to assess"
-- SOFTWARE FREEDOM LAW CENTER, INC.
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Re: SFLC files 2nd intimidation suit
On 2007-11-24, rjack <[EMAIL PROTECTED]> wrote: > Tim Smith wrote: >> On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: >>> The designated donee beneficiaries of the GPL are obviously "all third >>> parties". Clearly the plaintiffs are "parties" to the GPL contract and >>> cannot be a member of the class "all third parties." Therefore the >>> plaintiffs can suffer no injury by the source code not being made >>> available to "all third parties". > > >> Their injury is the use of the copyrighted work in a manner that they >> have not agreed to. > > > To constitute copyright infringement an action must be capable of > violating an author's 17 USC sec. 106 exclusive rights in the absence of > any license at all. > > Requiring distribution of another author's modifications in a derivative > work is not one of the exclusive rights enumerated under 17 USC sec. 106 > and cannot lead to a charge of "copyright infringement". The preparation of that derivative work in the first place is one of the exclusive rights under 17 USC 106. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Arnoud Engelfriet <[EMAIL PROTECTED]> writes: > On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: >> Arnoud Engelfriet <[EMAIL PROTECTED]> writes: >>> On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: But you better hire a darn brilliant lawyer if you want to get your punishment reduced because you consistently and from the start relied on a business plan involving defrauding the customers and misappropriating copyrighted material. >>> >>> Sounds like Google? >> >> So where do they plead for reduced punitive damages because they never >> intended to recompensate anybody in the first place? > > Google's attitude is basically "we copy everyone's stuff, and > you can opt out if you know how". That's not how copyright law works. So where do they plead for reduced punitive damages because they never intended to recompensate anybody in the first place? Focus. That was what I was talking about and what you pretended replying to. If you want to foam at your mouth about Google, feel free to start a new thread when your comment is completely irrelevant to the current posting. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: > Arnoud Engelfriet <[EMAIL PROTECTED]> writes: >> On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: >>> But you better hire a darn brilliant lawyer if you want to get your >>> punishment reduced because you consistently and from the start relied on >>> a business plan involving defrauding the customers and misappropriating >>> copyrighted material. >> >> Sounds like Google? > > So where do they plead for reduced punitive damages because they never > intended to recompensate anybody in the first place? Google's attitude is basically "we copy everyone's stuff, and you can opt out if you know how". That's not how copyright law works. Arnoud -- Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ Arnoud blogt nu ook: http://blog.iusmentis.com/ ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
David Kastrup wrote: > > Arnoud Engelfriet <[EMAIL PROTECTED]> writes: > > > On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: > >> But you better hire a darn brilliant lawyer if you want to get your > >> punishment reduced because you consistently and from the start relied on > >> a business plan involving defrauding the customers and misappropriating > >> copyrighted material. > > > > Sounds like Google? > > So where do they plead for reduced punitive damages because they never > intended to recompensate anybody in the first place? > > > Arnoud Engelfriet, Dutch & European patent attorney - Speaking only > > for myself > > Probably better that you speak for nobody else. Hands off Arnie, GNUtian dak! Google is 100 percent felon under GNU Law (just like the latest SFLC's targets Xterasys Corporation and High-Gain Antennas): http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:14537 http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:14540 http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:14550 regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Arnoud Engelfriet <[EMAIL PROTECTED]> writes: > On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: >> But you better hire a darn brilliant lawyer if you want to get your >> punishment reduced because you consistently and from the start relied on >> a business plan involving defrauding the customers and misappropriating >> copyrighted material. > > Sounds like Google? So where do they plead for reduced punitive damages because they never intended to recompensate anybody in the first place? > Arnoud Engelfriet, Dutch & European patent attorney - Speaking only > for myself Probably better that you speak for nobody else. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
rjack wrote: > The designated donee beneficiaries of the GPL are obviously "all third > parties". Clearly the plaintiffs are "parties" to the GPL contract and > cannot be a member of the class "all third parties." Therefore the > plaintiffs can suffer no injury by the source code not being made > available to "all third parties". The "third parties" here are all who are neither the donor nor the donee. And under US law it is not necessary for a copyright owner to show actual injury. -- John Hasler [EMAIL PROTECTED] Dancing Horse Hill Elmwood, WI USA ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
On 2007-11-24, David Kastrup <[EMAIL PROTECTED]> wrote: > But you better hire a darn brilliant lawyer if you want to get your > punishment reduced because you consistently and from the start relied on > a business plan involving defrauding the customers and misappropriating > copyrighted material. Sounds like Google? Arnoud -- Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ Arnoud blogt nu ook: http://blog.iusmentis.com/ ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Tim Smith <[EMAIL PROTECTED]> writes: > On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: >> The designated donee beneficiaries of the GPL are obviously "all >> third parties". Clearly the plaintiffs are "parties" to the GPL >> contract and cannot be a member of the class "all third parties." >> Therefore the plaintiffs can suffer no injury by the source code not >> being made available to "all third parties". > > Their injury is the use of the copyrighted work in a manner that they > have not agreed to. That's not an injury. That is just the base for complaint. The injury is a loss of reputation, a loss of job opportunity, a loss of potential reciprocal contributions and even a potential loss of proprietary licensing or at least proprietary contracts. Basically you can ask "how much money did they save?" Now the defendant might use the defense "but if we had been planning for actually paying people rather than ripping them off, we would not have started the project at all since it would not have been profitable then". But you better hire a darn brilliant lawyer if you want to get your punishment reduced because you consistently and from the start relied on a business plan involving defrauding the customers and misappropriating copyrighted material. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Tim Smith wrote: On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: The designated donee beneficiaries of the GPL are obviously "all third parties". Clearly the plaintiffs are "parties" to the GPL contract and cannot be a member of the class "all third parties." Therefore the plaintiffs can suffer no injury by the source code not being made available to "all third parties". Their injury is the use of the copyrighted work in a manner that they have not agreed to. To constitute copyright infringement an action must be capable of violating an author's 17 USC sec. 106 exclusive rights in the absence of any license at all. Requiring distribution of another author's modifications in a derivative work is not one of the exclusive rights enumerated under 17 USC sec. 106 and cannot lead to a charge of "copyright infringement". The alleged violation of the GPL (failure to distribute another author's modifications) is a contractual requirement that names it's designated donee beneficiaries as "all third parties". :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
On 2007-11-21, rjack <[EMAIL PROTECTED]> wrote: > The designated donee beneficiaries of the GPL are obviously "all third > parties". Clearly the plaintiffs are "parties" to the GPL contract and > cannot be a member of the class "all third parties." Therefore the > plaintiffs can suffer no injury by the source code not being made > available to "all third parties". Their injury is the use of the copyrighted work in a manner that they have not agreed to. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
On Wed, Nov 21, 2007 at 10:58:32PM +0900, Miles Bader wrote: > wh troll cluster-fuck! Just let them rejoice for a few minutes before reality sets in ;) Rui -- This statement is false. Today is Setting Orange, the 33rd day of The Aftermath in the YOLD 3173 + No matter how much you do, you never do enough -- unknown + Whatever you do will be insignificant, | but it is very important that you do it -- Gandhi + So let's do it...? ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Alexander Terekhov wrote: http://www.softwarefreedom.org/news/2007/nov/20/busybox/xterasys.pdf (SFLC's COMPLAINT) "Plaintiffs’ copyrights are ..." LOL. Adopted as sig. regards, alexander. -- "Plaintiffs’ copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. The complaint states: "11. Upon information and belief, Defendant makes and sells various electronic devices and hardware (the “Infringing Products”) that contain embedded executable software (the “Firmware”). Defendant also provides the Firmware itself for download via its website, at http://www.xterasys.com/support/drivers.htm."; How does one download "embedded executable software (the 'Firmware')" from a website? Maybe an extra-wide light pipe? ROFL :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
How is the weather in the GNU Republic today, GNUtian Bader? The sky is green and GPL is not a contract as usual? regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. Miles Bader wrote: > > wh troll cluster-fuck! > > -miles > -- > "Most attacks seem to take place at night, during a rainstorm, uphill, > where four map sheets join." -- Anon. British Officer in WW I ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
wh troll cluster-fuck! -miles -- "Most attacks seem to take place at night, during a rainstorm, uphill, where four map sheets join." -- Anon. British Officer in WW I ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
http://www.softwarefreedom.org/news/2007/nov/20/busybox/xterasys.pdf (SFLC's COMPLAINT) "Plaintiffs copyrights are ..." LOL. Adopted as sig. regards, alexander. -- "Plaintiffs copyrights are unique and valuable property whose market value is impossible to assess" -- SOFTWARE FREEDOM LAW CENTER, INC. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
Alexander Terekhov wrote: If either case filed is heard before a judge, it would be the first time that a GPL infringement lawsuit has gone to trial in the U.S. The SFLC will NEVER, NEVER allow their bluff to be called by "going to trial". If they did, the Court (perhaps sua sponte) would dismiss for lack of plaintiff's standing. The SFLC will voluntarily dismiss before any Rule 12 Motion to Dismiss is ever filed. GPL supporters will then loudly trumpet "THE GPL WON IN COURT" despite the obvious fact of the SFLC's voluntary dismissal to evade the Court's evaluation of the GPL. ROFL :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: SFLC files 2nd intimidation suit
2nd *and* 3rd. :-) http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9048298 --- The SFLC filed lawsuits Monday on behalf of the developers of BusyBox against High-Gain Antennas of Parker, Colorado, and Xterasys of City of Industry, California. The lawsuits, filed in U.S. District Court for the Southern District of New York, allege that the companies are distributing BusyBox illegally, without meeting the GPL requirement of providing access to the source code of their implementation. BusyBox, available since November 1999, is a lightweight set of standard Unix utilities commonly used in embedded systems licensed under GPL version 2. The two companies are distributing "BusyBox, or a modified version of BusyBox that is substantially similar to BusyBox," the lawsuits allege. The lawsuits ask the court to give the BusyBox developers the profits from that software, plus other damages. But Richard Bruckner, CEO of High-Gain Antennas, said the SFLC is mistaken about the GPL violation. The company, which makes wireless broadband antennas and related products, uses firmware from a company called Edimax, not BusyBox, and makes the source code available, at the request of customers, he said. Bruckner said he tried to explain the situation in a conference call with SFLC officials but was hung up on. During that first conversation SFLC was "already asking for money," he said. "What they need to do is get their act together and read the source code." If the SFLC doesn't end its threats, High-Gain Antennas may file a countersuit, Bruckner added. But Dan Ravicher, SFLC's legal director, said the organization has tried to work with both companies and has not gotten adequate responses. The two sides may still be able to settle the lawsuits out of court, he said. "There is a hope, but since neither defendant wanted to resolve the matter privately previously, we'll have to see if they want to do so now," he said. "In the end, we can hope to settle all we want, but if the defendants don't want to do so, we can't force them to. All we can do is ask the court to force the defendants to comply with the law." Ravicher also said he's confident in the lawsuits. "The evidence we collected during our investigation was sufficient for us to form a basis for our belief that they are distributing BusyBox and are not doing so in compliance with the GPL," he said. If either case filed is heard before a judge, it would be the first time that a GPL infringement lawsuit has gone to trial in the U.S. Officials from Xterasys weren't available to comment on the lawsuit against their company. These are the second and third lawsuits the SFLC has filed on behalf of BusyBox developers Erik Andersen and Rob Landley. --- regards, alexander. -- "The revolution might take significantly longer than anticipated." -- The GNU Monk Harald Welte ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
