Hyman Rosen wrote:
On 3/16/2010 12:27 PM, RJack wrote:
"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.”

<http://www.cafc.uscourts.gov/opinions/08-1001.pdf> Copyright holders
who engage in open source licensing have the right to control the
modification and distribution of copyrighted material. As the Second
Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976),
the "unauthorized editing of the underlying work, if proven, would
constitute an infringement of the copyright in that work similar to
any other use of a work that exceeded the license granted by the
proprietor of the copyright." Copyright licenses are designed to
support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to
 enforce through injunctive relief.

"Bandag, Inc. v. Al Bolser's Tire Stores, Inc., 750 F.2d 903, at 909
(Fed.Cir.1984), this court said:

Accordingly, we deem it appropriate here to decide non-patent matters in
the light of the problems faced by the district court from which each
count originated, including the law there applicable. In this manner, we
desire to avoid exacerbating the problem of intercircuit conflicts in
non-patent areas. A district court judge should not be expected to look
over his shoulder to the law in this circuit, save as to those claims
over which our subject matter jurisdiction is exclusive. [Footnote omitted.]

The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court is recognized in the foregoing opinions and in
this case."; ATARI, INC., v. JS & A GROUP, INC., 747 F.2d 1422, 223 USPQ
1074 (Fed. Cir. 1984) (en banc).
RJack :)
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