Actual Damages in JMRI Case
Alexander Terekhov
"Plaintiff�s Actual Damages
This award of actual damages looks at the facts from the point of view
of the copyright owner as it undertakes to compensate the owner for any
harm he suffered by reason of the infringer�s illegal act. See generally
Fitzgerald Publ�g Co. v. Baylor Publ�g Co., 807 F.2d 1110, 1118 (2nd
Cir. 1986); Walker v. Forbes, Inc., 28 F.3d 409, 412 (4th Cir. 1994).
The Ninth Circuit has defined the phrase �actual damages� as �the extent
to which the market value of a copyrighted work has been injured or
destroyed by an infringement.� Mackie v. Rieser, 296 F.3d 909, 917 (9th
Cir. 2002) (quoting Frank Music Corp. v. Metro Goldwyn-Mayer, 772 F.2d
505, 512 (9th Cir. 1985)). To determine the work�s �market value� at the
time of the infringement, the Ninth Circuit has endorsed a hypothetical
approach which asks �what a willing buyer would have been reasonably
required to pay to a willing seller for [the owner�s] work.� Id.; see
also Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 708 (9th
Cir. 2004). This is an objective approach, and �hurt feelings� has no
place in this calculus. Mackie v. Rieser, 296 F.3d at 917.
Here, it is undisputed that Plaintiff�s Decoder Definition Files are,
and always have been, available for free for download on
sourceforge.net. Katzer Decl. � 15. Therefore, under the current law in
this Circuit, the Decoder Definition Files have no market value. Since
the Decoder Definition Files have no market value, Plaintiff has not
suffered any actual damages."
He he.
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.)
Hyman Rosen
> http://jmri.sourceforge.net/k/docket/352.pdf
> He he.
This is the "Defendants� Motion for Summary Judgment",
what the defendants claim, not any judge's decision. I
suppose that does merit a "he he", but not in your sense.
Alexander Terekhov
Hyman Rosen wrote:
>
> Alexander Terekhov wrote:
> > http://jmri.sourceforge.net/k/docket/352.pdf
> > He he.
>
Well, Hyman... note that Plaintiff's Motion for Summary Judgment
http://jmri.sourceforge.net/k/docket/343.pdf
says *nothing* about Actual Damages whatsoever... presumably because
Plaintiff agrees with Defendants that his Actual Damages ARE
NON-EXISTENT... no, Hyman?
Please elaborate. LOL.
Hyman Rosen
> 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; 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.
David Kastrup
> Hyman Rosen wrote:
>>
>> Alexander Terekhov wrote:
>> > http://jmri.sourceforge.net/k/docket/352.pdf
>> > He he.
>>
>> This is the "Defendants’ Motion for Summary Judgment",
>
> Well, Hyman... note that Plaintiff's Motion for Summary Judgment
>
> http://jmri.sourceforge.net/k/docket/343.pdf
>
> says *nothing* about Actual Damages whatsoever... presumably because
> Plaintiff agrees with Defendants that his Actual Damages ARE
> NON-EXISTENT... no, Hyman?
Actual damages are what the market for the equivalent of licensing the
software under the conditions that the defendant used would have cost.
That the licensor is not apparently interested in making use of the
market value (and consequently the item is not actually on the market)
does not play into this.
If somebody steals (and resells) a unique musical instrument of mine
which I never intended to sell, he can't claim that I don't have any
actual damages since I was not planning to sell it, and since it can't
be bought elsewhere.
As a minimum, the actual resale price (after all, the instrument or the
resulting software _has_ been resold) divided by the usual price
reduction factor for stolen goods (not unlikely 0.3 or so) would be a
reasonable guess for "market value".
If my aim of plaintiff is not getting monetary compensation, but rather
the original state back (return of the instrument, whatever consequences
to the thief, or rescinsion of all unauthorized software copies,
whatever consequences to the reseller), actual damages are not
interesting and not what I will be suing for. In this case, the
defendant is bringing them up mostly as a red herring.
--
David Kastrup
Alexander Terekhov
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."
Hyman Rosen
> CAFC...silly...idiotic
Stand by for another thrilling rerun of court vs. crank.
Rjack
I don't understand all the bluster and noise concerning this erroneous
decision by the CAFC. The CAFC itself has ruled while sitting en banc
that:
"[In} 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)
Which part of:
"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."
don't GNUtians understand?
Outside of *this* particular, unique case, the decision carries no
precedental authority at all -- it might as well be written on toilet
paper. In this dispute, District Judge White is compensating for the
obvious error of the CAFC's decision by denying the plaintiff's
requests for relief on other grounds. There's more than one way to
skin a skunk and Judge White obviously recognizes this fact.
Sincerely,
Rjack
Alexander Terekhov
Rjack wrote:
[...]
> I don't understand all the bluster and noise concerning this erroneous
> decision by the CAFC. The CAFC itself has ruled while sitting en banc
Hyman Rosen is playing naive brainwashed GNUtian here.
This thread reminded me of the following titbit:
http://www.law.washington.edu/lct/swp/Law/derivative.html
"To effectuate the goals of the free software movement, the drafters of
the GPL urge a generally expansive definition of derivative work. The
great irony is, of course, that such an expansive definition would have
second order consequences that are exactly counter to the goals of the
proponents of Free Software. A broad definition of derivative would give
code authors ***less*** freedom to create software that they can truly
call their own and do with as they please. And if naive analytic
approaches such as "subclassing equals derivation" reign..."
He he.
Tim Smith
Alexander Terekhov <tere...@web.de> wrote:
> http://jmri.sourceforge.net/k/docket/352.pdf
> 505, 512 (9th Cir. 1985)). To determine the work‚s „market value‰ at the
> time of the infringement, the Ninth Circuit has endorsed a hypothetical
> approach which asks „what a willing buyer would have been reasonably
> required to pay to a willing seller for [the owner‚s] work.‰ Id.; see
> also Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 708 (9th
> Cir. 2004). This is an objective approach, and „hurt feelings‰ has no
> place in this calculus. Mackie v. Rieser, 296 F.3d at 917.
Surely, though, the hypothetical must take into account the details of
the infringer's use? For example, suppose a movie studio made its movies
available for free streaming over the net. If someone came along,
recorded those streams, and turned then into DVDs which they sold, I
can't see a court, even a Ninth Circuit court, saying that the free
streams means that the studio would have sold DVD rights for $0.
--
--Tim Smith
Alan Mackenzie
> Rjack wrote:
> [...]
>> I don't understand all the bluster and noise concerning this erroneous
>> decision by the CAFC. The CAFC itself has ruled while sitting en banc
> Hyman Rosen is playing naive brainwashed GNUtian here.
> This thread reminded me of the following titbit:
> http://www.law.washington.edu/lct/swp/Law/derivative.html
> "To effectuate the goals of the free software movement, the drafters of
> the GPL urge a generally expansive definition of derivative work. The
> great irony is, of course, that such an expansive definition would have
> second order consequences that are exactly counter to the goals of the
> proponents of Free Software. A broad definition of derivative would give
> code authors ***less*** freedom to create software that they can truly
> call their own and do with as they please. And if naive analytic
> approaches such as "subclassing equals derivation" reign..."
> He he.
You're being imbecillic here, Alex. I'm not even bothering to look at
the site you cite, since experience shows this to be generally a waste of
time.
Chances are, that excerpt was written by a lawyer who knows a lot about
the law, and little to nothing about free software. He's obviously wrong
in his assertions, since he appears not to understand what the goals of
free software actually are. They certainly aren't about "creating
software that [somebody] can truly call his own". He appears to belong
to the class of people who believe the fact that free software isn't
public domain is a bug rather than a feature.
> regards,
> alexander.
--
Alan Mackenzie (Nuremberg, Germany).
Alexander Terekhov
Alan Mackenzie wrote:
[...]
> Chances are, that excerpt was written by a lawyer who knows a lot about
> the law, and little to nothing about free software. He's obviously wrong
> in his assertions, since he appears not to understand what the goals of
> free software actually are. They certainly aren't about "creating
> software that [somebody] can truly call his own". He appears to belong
I'll try to explain it to you silly. Suppose you wrote a piece of
software and it is judged to be truly yours and only yours (not
infringing the rights of others). Guess what: you've got all your "four
freedoms" and can enjoy freedom. On the other side of the spectrum is
the same piece of software but infringing based on idiotic expansive
GNUish theory of derivative works... now say goodbye to your "four
freedoms." Got it now, Alan?
Alexander Terekhov
Probably not as long as market for streaming has not eliminated the DVD
market.
Different market values.
How does that relate to the JMRI case?
Alan Mackenzie
> Alan Mackenzie wrote:
> [...]
>> Chances are, that excerpt was written by a lawyer who knows a lot
>> about the law, and little to nothing about free software. He's
>> obviously wrong in his assertions, since he appears not to understand
>> what the goals of free software actually are. They certainly aren't
>> about "creating software that [somebody] can truly call his own". He
>> appears to belong
> I'll try to explain it to you silly. Suppose you wrote a piece of
> software and it is judged to be truly yours and only yours (not
> infringing the rights of others).
Yes. This is usually known as "proprietary software".
> Guess what: you've got all your "four freedoms" and can enjoy freedom.
Yes, but nobody else has. The software isn't free. As I've just said,
it's usually categorised as "proprietary software".
> On the other side of the spectrum is the same piece of software but
> infringing based on idiotic expansive GNUish theory of derivative
> works... now say goodbye to your "four freedoms."
Say what? That doesn't even parse.
> Got it now, Alan?
Yes indeed. But you clearly haven't.
Alexander Terekhov
Alan Mackenzie wrote:
>
> Alexander Terekhov <tere...@web.de> wrote:
>
> > Alan Mackenzie wrote:
> > [...]
>
> >> Chances are, that excerpt was written by a lawyer who knows a lot
> >> about the law, and little to nothing about free software. He's
> >> obviously wrong in his assertions, since he appears not to understand
> >> what the goals of free software actually are. They certainly aren't
> >> about "creating software that [somebody] can truly call his own". He
> >> appears to belong
>
> > I'll try to explain it to you silly. Suppose you wrote a piece of
> > software and it is judged to be truly yours and only yours (not
> > infringing the rights of others).
>
> Yes. This is usually known as "proprietary software".
>
> > Guess what: you've got all your "four freedoms" and can enjoy freedom.
>
> Yes, but nobody else has. The software isn't free. As I've just said,
> it's usually categorised as "proprietary software".
What you mean is categorized by the GNU.ORG as "free software in a
trivial sense" aka "private or custom software".
http://www.gnu.org/philosophy/categories.html
"Private or custom software is software developed for one user
(typically an organization or company). That user keeps it and uses it,
and does not release it to the public either as source code or as
binaries.
A private program is free software in a trivial sense if its unique user
has full rights to it.
In general we do not believe it is wrong to develop a program and not
release it. There are occasions when a program is so useful that
withholding it from release is treating humanity badly. However, most
programs are not that important, so not releasing them is not
particularly harmful. Thus, there is no conflict between the development
of private or custom software and the principles of the free software
movement.
Nearly all employment for programmers is in development of custom
software; therefore most programming jobs are, or could be, done in a
way compatible with the free software movement."
>
> > On the other side of the spectrum is the same piece of software but
> > infringing based on idiotic expansive GNUish theory of derivative
> > works... now say goodbye to your "four freedoms."
>
> Say what? That doesn't even parse.
Go to doctor Alan.