Hyman Rosen wrote: > > Alexander Terekhov wrote: > > presumably because Plaintiff agrees with Defendants that > > his Actual Damages ARE NON-EXISTENT... no, Hyman? > > <http://www.cafc.uscourts.gov/opinions/08-1001.pdf> > Copyright licenses are designed to support the right to > exclude;
Err. Copyright licenses are designed to support the right to include. > Indeed, because a calculation of damages is inherently > speculative, See? CAFC admits that Actual Damages ARE NON-EXISTENT. E.g. from the 6th Circuit http://openjurist.org/853/f2d/497 "a damage award must not be based on 'mere speculation, guess, or conjecture.' " John E. Green Plumbing & Heating Co. v. Turner Construction Co., 742 F.2d 965, 968 (6th Cir.1984), cert. denied 471 U.S. 1102, 105 S.Ct. 2328, 85 L.Ed.2d 845 (1985), (quoting Zivin Laboratories Int v. Mead-Johnson & Co. 208 F.Supp. 633 (E.D.Mich.1962). . . . After reviewing the record, however, we are convinced that the bankruptcy court's award of actual damages was erroneous because it was based on speculative evidence and mere conjecture." or from the 10th: http://vlex.com/vid/state-s-griffith-gornall-carman-inc-36646304 "The fact of damage, however, must be proved to a certainty. Mathematical exactness as to the amount is not required but the evidence must form a basis for a reasonable approximation. The court must have before it such facts and circumstances to enable it to make an estimate of damage based upon judgment, not guesswork. Palmer v. Connecticut Ry. & Lighting Co., supra. 'Actual damages only may be secured. Those that are speculative, remote, uncertain, may not form the basis of a lawful judgment. The actual damages which will sustain a judgment must be established, not by conjectures or unwarranted estimates of witnesses, but by facts from which their existence is logically and legally inferable. The speculations, guesses, estimates of witnesses, form no better basis of recovery than the speculations of the jury themselves.' Central Coal & Coke Co. v. Hartman, 8 Cir., 111 F. 96, 98. " > these types of license restrictions might well > be rendered meaningless absent the ability to enforce through > injunctive relief. That is CAFC's silly attempt to create idiotic new law for the 9th Circuit. http://www.patentlyo.com/patent/2008/08/open-source-lic.html "I think that these copyleft licenses are great and all, but this decision ought to be rubbing people the wrong way. Essentially, the court found that breach of a contract clause (attribution) can give rise to "copyright infringement!" The court bent over backwards to make attribute a "condition" on the license grant, but I was left entirely unconvinced. The grant was purposefully broad. It does not seem that the person breached the granting clause. They breached other provisions. This is bad because most grants have some "catch-all" language that states: Licensor grants to licensee a non-exclusive right to do x under Licensor's patents [copyrights], provided licensee complies with the terms of this agreement. Does that mean ANY violation of the contract gives rise to an infringement? E.g. if you make ONE late payment and you're now an infringer? Yikes! That said, presumably a licensor can terminate the agreement for breach and then on-going activity would be infringement. But that is simply not what this court has done. All around, really, not a good day for the consumers." 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
