Re: Blowhard Bradley Kuhn and his fraud
On 2/3/2011 10:59 AM, David Kastrup wrote: RJack writes: On 2/2/2011 9:47 AM, RJack wrote: Uh... buh bye SFC and Erik Andersen: ---Filed 02/01/11--- ANSWER OF PHOEBE MICRO, INC. Uh, that's the reply of the defendant, not a court order. Let's see how much of it remains after being filtered through the judge before starting to party... Oh Yea of little faith! That defendant reply agrees with all of my prior assertions in posts concerning the Best Buy Inc. debacle. Since my reasoning is infallible, the end surely draws nigh. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernorscandalous ruling)
On 2/3/2011 11:24 AM, Alexander Terekhov wrote: RJack wrote: [...] All this ruling really says, is that Hoops as a counter-claimant has the status of a plaintiff (not defendant) and carries the burden of proof and must plead facts to establish ownership of the copies in order to defeat a Motion to Dismiss. I disagree. The court ruled: "Hoops avers that it resold Adobe products it “purchased from third party intermediary distributors,” Hoops Countercl. ¶ 8, but offers no facts regarding under what terms these distributors obtained the copies." Some time ago I bought a BMW car from a nearby dealer. The car includes tons of software and I even patched some of it (navigation computer software originating from http://www.navteq.com/ GPS stuff). Patching aside, I have no idea regarding "what terms these distributors obtained the copies" of the software in my BMW car. And now I'm being told that I can not sell my BMW car without permission from bmw.com if I live in California... Luckily I don't live in the Ninth Circuit... regards, alexander. Caveat Emptor. You should'a bought a Cadillac. When you buy a car from a company whose chief shareholder is the federal government, you don't have to worry about those lawsuits. He. He. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Blowhard Bradley Kuhn and his fraud
RJack writes: > On 2/3/2011 10:59 AM, David Kastrup wrote: >> RJack writes: >> >>> On 2/2/2011 9:47 AM, RJack wrote: >>> >>> Uh... buh bye SFC and Erik Andersen: >>> >>> ---Filed 02/01/11--- ANSWER OF PHOEBE MICRO, INC. >> >> Uh, that's the reply of the defendant, not a court order. Let's see >> how much of it remains after being filtered through the judge before >> starting to party... > > Oh Yea of little faith! > > That defendant reply agrees with all of my prior assertions in posts > concerning the Best Buy Inc. debacle. Given your track record, that should worry them. > Since my reasoning is infallible, the end surely draws nigh. Doubtless. -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Blowhard Bradley Kuhn and his fraud
On 2/3/2011 10:54 AM, RJack wrote: On 2/2/2011 9:47 AM, RJack wrote: Uh... buh bye SFC and Erik Andersen: ---Filed 02/01/11--- ANSWER OF PHOEBE MICRO, INC. ... [snip] AFFIRMATIVE AND ADDITIONAL DEFENSES Phoebe Micro, as and for affirmative and additional defenses, alleges as follows: 1. The Complaint fails to state a claim on which relief can be granted. 2. The GNU General Public License, Version 2, as alleged by Plaintiffs, is not enforceable. 3. On information and belief, Plaintiffs are not proper parties. 4. Plaintiffs are not entitled to assert a claim for statutory damages against Phoebe Micro under 17 U.S.C. § 504(c). The attorney for PHOEBE MICRO is Andrew M. Kaver a single attorney firm. http://www.kaverlaw.com/ It is glaringly obvious that Mr. Kaver has been in communication with Robins, Kaplan, Miller & Ciresi, LLP http://www.rkmc.com/David-Leichtman.htm The era of the GPL license and "Free as in Freedom" software" and its attempted subversion of the principles of open source coding is about to end. Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Blowhard Bradley Kuhn and his fraud
On 2/2/2011 9:47 AM, RJack wrote: Uh... buh bye SFC and Erik Andersen: ---Filed 02/01/11--- ANSWER OF PHOEBE MICRO, INC. ... [snip] AFFIRMATIVE AND ADDITIONAL DEFENSES Phoebe Micro, as and for affirmative and additional defenses, alleges as follows: 1. The Complaint fails to state a claim on which relief can be granted. 2. The GNU General Public License, Version 2, as alleged by Plaintiffs, is not enforceable. 3. On information and belief, Plaintiffs are not proper parties. 4. Plaintiffs are not entitled to assert a claim for statutory damages against Phoebe Micro under 17 U.S.C. § 504(c). Sincerely, RJack :) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Blowhard Bradley Kuhn and his fraud
RJack writes: > On 2/2/2011 9:47 AM, RJack wrote: > > Uh... buh bye SFC and Erik Andersen: > > ---Filed 02/01/11--- > ANSWER OF PHOEBE MICRO, INC. Uh, that's the reply of the defendant, not a court order. Let's see how much of it remains after being filtered through the judge before starting to party... -- David Kastrup ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernorscandalous ruling)
RJack wrote: [...] > All this ruling really says, is that Hoops as a counter-claimant has the > status of a plaintiff (not defendant) and carries the burden of proof > and must plead facts to establish ownership of the copies in order to > defeat a Motion to Dismiss. I disagree. The court ruled: "Hoops avers that it resold Adobe products it purchased from third party intermediary distributors, Hoops Countercl. ¶ 8, but offers no facts regarding under what terms these distributors obtained the copies." Some time ago I bought a BMW car from a nearby dealer. The car includes tons of software and I even patched some of it (navigation computer software originating from http://www.navteq.com/ GPS stuff). Patching aside, I have no idea regarding "what terms these distributors obtained the copies" of the software in my BMW car. And now I'm being told that I can not sell my BMW car without permission from bmw.com if I live in California... Luckily I don't live in the Ninth Circuit... 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 gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)
On 2/3/2011 8:16 AM, Alexander Terekhov wrote: Stupidity rules in the Ninth Circuit: "IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ADOBE SYSTEMS INCORPORATED, Plaintiff, v. ANTHONY KORNRUMPF, a/k/a TONY KORNRUMPF; and HOOPS ENTERPRISE, LLC, Defendants. / HOOPS ENTERPRISE, LLC, Counter-Claimant, v. ADOBE SYSTEMS INCORPORATED, Counter-Defendant, and SOFTWARE AND INFORMATION INDUSTRY ASSOCIATION, Third-Party Defendant. / No. C 10-02769 CW ORDER GRANTING ADOBE SYSTEMS INCORPORATED AND SOFTWARE& INFORMATION INDUSTRY ASSOCIATION’S MOTION TO DISMISS HOOPS ENTERPRISE, LLC’S CLAIMS (Docket No. 34) Plaintiff First Sale Doctrine A copyright holder has the exclusive right to “distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). The first sale doctrine enables an “‘owner of a particular copy’ of a copyrighted work to sell or dispose of his copy without the copyright owner’s authorization.” Vernor v. Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir. 2010) (quoting 17 U.S.C. § 109(a)). The doctrine “does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee.” Vernor, 621 F.3d at 1107 (citing 17 U.S.C. § 109(d)). “Notwithstanding its distinctive name, the doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale.” UMG Recordings v. Augusto, ___ F.3d ___, 2011 WL 9399, at *3 (9th Cir.) (citations omitted). However, “not every transfer of possession of a copy transfers title.” Id. at *4. For instance, in the context of computer software, “copyright owners may create licensing arrangements so that users acquire only a license to use the particular copy of software and do not acquire title that permits further transfer or sale of that copy without the permission of the copyright owner.” Id. In Vernor, a declaratory judgment action, the Ninth Circuit addressed the resale of copyrighted software on eBay. 621 F.3d at 1103. There, Vernor sought a declaration that he did not infringe the copyright of Autodesk, a software company. Id. Vernor had purchased copies of Autodesk’s software from Cardwell/Thomas& Associates (CTA), one of Autodesk’s direct customers, and then attempted to resell them on eBay. Id. CTA had obtained the copies under a software license agreement, which imposed significant restrictions on their transfer and use. Id. at 1104. Based on this agreement, the Ninth Circuit rejected Vernor’s assertion of the first sale doctrine, concluding that neither he nor CTA were owners of the particular copies. Id. at . The court reasoned that CTA was only a licensee and that Autodesk retained title to the software. Id. Here, Hoops does not plead any facts to suggest that it owned any of the particular copies of Adobe software that it resold or that it obtained the copies from entities that had owned them. Nor does Hoops allege that Adobe ever sold, gave away or transferred title to the particular copies of the software at issue. Hoops avers that it resold Adobe products it “purchased from third party intermediary distributors,” Hoops Countercl. ¶ 8, but offers no facts regarding under what terms these distributors obtained the copies. Although it maintains that these copies did not infringe “Adobe’s right of reproduction,” id., Hoops says nothing about Adobe’s right of distribution, to which the first sale doctrine applies. In lieu of addressing these defects, Hoops offers an unpersuasive argument that it has not sold Adobe’s copyrighted work but rather sold discs containing copies of that work. This attempted distinction illuminates the flaw in Hoops’s theory. Adobe does not allege that Hoops unlawfully transferred ownership of Adobe’s copyrighted software. It alleges that Hoops and Kornrumpf sold copies of Adobe’s software in violation of Adobe’s exclusive distribution right. To avail itself of the first sale doctrine, Hoops must demonstrate that it owned the copies of the Adobe software it resold; it is irrelevant whether Hoops owned the discs on which the copies were stored. A copyright attaches to an original work of authorship, not the particular medium in which it was initially fixed. Hoops appears to argue that Vernor is distinguishable because that case involved a license agreement. However, Hoops’s allegations are not sufficient to determine whether Vernor is analogous; as noted above, Hoops offers no insight into the circumstances under which it obtained the copies of Adobe software. Finally, Hoops alleges that Adobe and SIIA misuse Adobe’s copyrights because their conduct attempts to hamper competition by eliminating the secondary market of copies of Adobe software. However, because Hoops has not established that it, or any other re-seller, sold copies subject to the first sale doctrine, this allegation is unavailing. It is
Re: UMG vs. Augusto: first sale wins
http://www.iplitigationupdate.com/blog.aspx?entry=1173 "Sending Promotional Music CDs Constitutes First Sale for Copyright Protection Purposes Januar 28, 2011 | Posted by Karin Scherner Aldama | Print this page The Ninth Circuit recently held that a copyright owners unsolicited mailing of promotional music CDs to, for example, music critics and radio disc jockeys constituted a sale of the discs to their recipients for purposes of the Copyright Acts first sale doctrine, 17 U.S.C. § 109(a). UMG Recordings, Inc. v. Augusto, __ F.3d __, No. 08-55998, 2011 WL 9399 (9th Cir. Jan. 4, 2011). UMG brought copyright infringement claims against Augusto, who had obtained from third parties promotional CDs distributed by UMG and then offered those CDs for auction on the Internet. UMG argued that the original recipients of its CDs only obtained a license because the CDs generally contained promotional statements indicating that they were licensed to the intended recipient for personal use only, and that their acceptance constitute[s] an agreement to comply with the terms of the license. Id. at *1. The promotional statements also prohibited the transfer or resale of the CDs. Augusto argued against the claims on the basis of the first sale doctrine. That doctrine provides that the lawful owner of a lawful copy of a CD can sell or otherwise dispose of that copy as he pleases, without the consent of the copyright owner. 17 U.S.C. § 109(a). The district court granted summary judgment for Augusto, and UMG appealed. In upholding the district courts grant of summary judgment for Augusto, the Ninth Circuit concluded that the original recipients obtained ownership of and title to the CDs, and thus the first sale doctrine applied. The Ninth Circuit based its conclusion on an evaluation of all the circumstances of the CDs distribution. UMG, 2011 WL 9399, at *4. Of particular importance were the following factors: (1) The CDs were unsolicited and dispatched without any prior arrangement with their intended recipients in regard to what would happen to the individual CDs; (2) The CDs [were] not numbered, and no attempt [was] made to keep track of where particular copies [were] or what use [was] made of them, so that UMG retained no control over the copyrighted material; and (3) The promotional statements on the CDs did not create a license because there was no evidence that any of the original recipients ever agreed to enter into a license agreement, and acceptance of a license cannot be assumed when the recipient makes no response at all. Id. at *4, *6. Based on these factors, the court concluded that UMG dispatched the CDs in a manner that permitted their receipt and retention by the recipients without the recipients accepting the terms of the promotional statements. UMGs transfer of unlimited possession in the circumstances present here effected a gift or sale within the meaning of the first sale doctrine. Id. at 7. In reaching its conclusion, the court emphasized the differences between the circumstances in this case and those at issue in cases involving software licenses. Specifically, the court focused on the fact that software users order and pay for copies of software and implied that it was also relevant that software vendors typically control how the copyrighted software can be used. Id. at *6-7. Effective software licenses are thus distinguishable from the ineffective licenses that UMG tried to create. Augusto had also argued against UMGs claims based on the Unordered Merchandise Statute, 39 U.S.C. § 3009, which allows recipients of unordered merchandise to dispose of that merchandise as they see fit. The court found that Augusto could not invoke that statute directly because, by its terms, it applied only to the CDs original recipients. Nonetheless, the court concluded that the Unordered Merchandise Statute supported its conclusion that the mailing of the CDs effected a sale and not a license because the statute renders recipients of unordered merchandise, such as the CDs at issue, owners of that merchandise. UMG, 2011 WL 9399, at *5. Lesson Learned: The unsolicited mailing of copyrighted material without any control over what subsequently happens to that material constitutes a first sale. Unless the recipients agree to enter into a license, a first sale occurs even if the material is accompanied by a promotional statement seeking to create a license, because acceptance of such a license cannot be assumed without the recipients confirmation of acceptance. Consequently, after receipt of unsolicited copyrighted materials, recipients can dispose of that material as they see fit, and the copyright holder cannot control or prevent that disposition." 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.) _
Re: Utterly imbecile pinky communist Ninth Circuit 'judges' (Vernor scandalous ruling)
Stupidity rules in the Ninth Circuit: "IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ADOBE SYSTEMS INCORPORATED, Plaintiff, v. ANTHONY KORNRUMPF, a/k/a TONY KORNRUMPF; and HOOPS ENTERPRISE, LLC, Defendants. / HOOPS ENTERPRISE, LLC, Counter-Claimant, v. ADOBE SYSTEMS INCORPORATED, Counter-Defendant, and SOFTWARE AND INFORMATION INDUSTRY ASSOCIATION, Third-Party Defendant. / No. C 10-02769 CW ORDER GRANTING ADOBE SYSTEMS INCORPORATED AND SOFTWARE & INFORMATION INDUSTRY ASSOCIATIONS MOTION TO DISMISS HOOPS ENTERPRISE, LLCS CLAIMS (Docket No. 34) Plaintiff First Sale Doctrine A copyright holder has the exclusive right to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. 17 U.S.C. § 106(3). The first sale doctrine enables an owner of a particular copy of a copyrighted work to sell or dispose of his copy without the copyright owners authorization. Vernor v. Autodesk, Inc., 621 F.3d 1102, 1107 (9th Cir. 2010) (quoting 17 U.S.C. § 109(a)). The doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee. Vernor, 621 F.3d at 1107 (citing 17 U.S.C. § 109(d)). Notwithstanding its distinctive name, the doctrine applies not only when a copy is first sold, but when a copy is given away or title is otherwise transferred without the accouterments of a sale. UMG Recordings v. Augusto, ___ F.3d ___, 2011 WL 9399, at *3 (9th Cir.) (citations omitted). However, not every transfer of possession of a copy transfers title. Id. at *4. For instance, in the context of computer software, copyright owners may create licensing arrangements so that users acquire only a license to use the particular copy of software and do not acquire title that permits further transfer or sale of that copy without the permission of the copyright owner. Id. In Vernor, a declaratory judgment action, the Ninth Circuit addressed the resale of copyrighted software on eBay. 621 F.3d at 1103. There, Vernor sought a declaration that he did not infringe the copyright of Autodesk, a software company. Id. Vernor had purchased copies of Autodesks software from Cardwell/Thomas & Associates (CTA), one of Autodesks direct customers, and then attempted to resell them on eBay. Id. CTA had obtained the copies under a software license agreement, which imposed significant restrictions on their transfer and use. Id. at 1104. Based on this agreement, the Ninth Circuit rejected Vernors assertion of the first sale doctrine, concluding that neither he nor CTA were owners of the particular copies. Id. at . The court reasoned that CTA was only a licensee and that Autodesk retained title to the software. Id. Here, Hoops does not plead any facts to suggest that it owned any of the particular copies of Adobe software that it resold or that it obtained the copies from entities that had owned them. Nor does Hoops allege that Adobe ever sold, gave away or transferred title to the particular copies of the software at issue. Hoops avers that it resold Adobe products it purchased from third party intermediary distributors, Hoops Countercl. ¶ 8, but offers no facts regarding under what terms these distributors obtained the copies. Although it maintains that these copies did not infringe Adobes right of reproduction, id., Hoops says nothing about Adobes right of distribution, to which the first sale doctrine applies. In lieu of addressing these defects, Hoops offers an unpersuasive argument that it has not sold Adobes copyrighted work but rather sold discs containing copies of that work. This attempted distinction illuminates the flaw in Hoopss theory. Adobe does not allege that Hoops unlawfully transferred ownership of Adobes copyrighted software. It alleges that Hoops and Kornrumpf sold copies of Adobes software in violation of Adobes exclusive distribution right. To avail itself of the first sale doctrine, Hoops must demonstrate that it owned the copies of the Adobe software it resold; it is irrelevant whether Hoops owned the discs on which the copies were stored. A copyright attaches to an original work of authorship, not the particular medium in which it was initially fixed. Hoops appears to argue that Vernor is distinguishable because that case involved a license agreement. However, Hoopss allegations are not sufficient to determine whether Vernor is analogous; as noted above, Hoops offers no insight into the circumstances under which it obtained the copies of Adobe software. Finally, Hoops alleges that Adobe and SIIA misuse Adobes copyrights because their conduct attempts to hamper competition by eliminating the secondary market of copies of Adobe software. However, because Hoops has not established that it, or any other re-seller, sold copies subject to the first sale doctrine, this allegation is unavailing. It is not a misuse of copyright to dismantle a market
