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Strong Court Ruling Upholds the Artistic License
Posted by
timothy
on Wed Aug 13, 2008 02:41 PM
from the clear-cut-copyright-clause-crackdown dept.
from the clear-cut-copyright-clause-crackdown dept.
dilute writes "The US Court of Appeals for the Federal Circuit (an authoritative court that normally deals with patent law), has issued a strong ruling (PDF) upholding the Artistic License in a copyright dispute between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under the Artistic License, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version." Read on for more, below.
Dilute continues: "The lower court denied relief, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). In a strong ruling, the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses."
Reader ruphus13 point to Lawrence Lessig's commentary on the ruling; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
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Good for GPL but... (Score:4, Interesting)
; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
As well as most EULAs I suppose... or is a legal distinction made between license for personal use vs. license for redistribution?
Re: (Score:2, Informative)
Re: (Score:2, Informative)
is a legal distinction
IIRC, the original ruling that the lower court made in order to claim that the artistic license was powerless, was that no money changed hands therefore there were wookies on endor or something equally inane.
Re: (Score:3, Funny)
Does this mean you don't believe in copyright?
Re:Good for GPL but... (Score:5, Insightful)
Rights that are asserted under copyright, are not surrendered based on any money changing hands.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
I think you have the ideas of a "License" and a "Contract" conflated. A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.
Parent
Re:Good for GPL but... (Score:5, Informative)
I have no idea how this got modded insightful. It doesn't even make sense.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
Contracts have nothing to do with it. Copyright does indeed deal with reserved rights--the creator's rights. Any right not granted by copyright or by independent agreement is reserved by the owner. Copyright does not supersede contractual rights; indeed, the entire point of contract law is to create relationships outside of or contrary to statutory law.
A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.
What does this even mean? Consideration is one way of validating a contract (but not the only way), and this has exactly nothing to do with reserved rights.
A license is a grant of rights. It is a promise not to sue. That's it. The GPL is not a license, because it says, "I promise not to sue IF you do x, y, and z"--that is a license agreement. It contains a license, but it too requires assent. Failure to provide that assent results in failure to attain the needed license, thus placing a person in a position of copyright inflation. The attempt to characterize it here as mere breach of contract is an attempt to limit potential judgments, as contractual damages are far less than statutory copyright damages.
It is not a binary situation. Finding copyright infringement does not preclude breach of contract, and in fact the two usually go hand in hand in licensing disputes. It is possible to infringe the copyright without breaching the contract, and it is also possible to breach the contract without committing copyright infringement.
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Re: (Score:3, Informative)
Contracts require consideration, and that means that a contract must have benefits going to each party.
No. Consideration is not benefit.
a contract that grants benefits to one party, but not the other is considered to have been forced
No. A contract involving acts on one party may be unilateral or gratuitous, but being "forced" has nothing to do with whether the contract is a good deal for both parties. Voluntary entry into an agreement not requiring unlawful activity is not "forced".
I did not read the article, but it appears the court decided that this is not a contract issue as the lower court said
Then perhaps it would be best to refrain from speculation, since that is not what the opinion says at all. The operative language is "only for breach of contract", which is not the issue. The issue is the availability of
Re:_OSS (Score:3, Insightful)
"Free" might aquire yet another meaning, something like "Free as in a Dollar".
It might have to do with the "Consideration Exchanged" part of contract law. I'd forego a dollar's worth of benefit for software to slide by that rule on the software side. "A Dollar's benefit" could be interpreted like "A Dollar's worth of NYCL's time"... which would be a reply to a comment here.
Re:Good for GPL but... (Score:5, Informative)
>or is a legal distinction made between license for personal use vs. license for redistribution?
Yes, there is such a distinction from the start -- copyright protects distribution, not use.
You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.
Parent
Re:Good for GPL but... (Score:5, Insightful)
Yes, there is such a distinction from the start -- copyright protects distribution, not use.
copyright protects *copy rights* including: copying, redistribution, performance, and broadcast.
You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.
What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.
If I have no license to use it, I can't make those copies.
So you can't use it without a license.
And the courts have ALREADY made rulings that apply copyright infringement to occurring in an unauthorized 'disk to RAM' copy made by that WoW cheat program. (glider?)
Parent
Re:Good for GPL but... (Score:4, Informative)
USC Title 17 Chapter 1 section 117 paragraph (a) [cornell.edu] grants permission to make certain copies, eg. those neccesary for running a computer program. To be technically picky about it, it says that it is not an infringement of copyright to make those copies or to authorize having them made.
Parent
Re:Good for GPL but... (Score:5, Insightful)
Although I admit that some judges have been stupid enough to buy it, that argument is bullshit because those copies are incidental to the physical workings of the medium, and express no intent on the part of a human.
By the same argument, DVDs would require an EULA because they're decrypted and stored in the DVD player's RAM, the Internet couldn't exist as we know it because routers would violate copyright if they were set to store-and-forward (and I'm not even going to mention proxy and mail servers!), books would require an EULA because their information is copied into photons by the light reflecting off them and into the reader's eyes, etc. It's absurd.
And this isn't even a Fair Use argument: the installation of software onto hard drives and duplication into RAM shouldn't even count, legally, as copies to begin with! (As long as there's a one-to-one correspondence between the installed program and its installation media, of course.)
And those courts were wrong.
Parent
Re:Good for GPL but... (Score:4, Insightful)
There is always the merchantability argument to counter that. If you sell me a product which requires specific technical steps to use and then don't allow me (by whatever mechanism) to take those steps, the product is useless.
To use a DVD as intended and marketed, my DVD player has to be able to read the disc, store and decrypt the data stream, copy it to a buffer, stream the video to a TV, and so on. If you prevent me from doing so, that would be a form of fraud because you marketed and sold it as a way to watch a movie.
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Re: (Score:3, Informative)
Eeehhh....
In-memory copies count as copies. But, if you are the owner of a copy of computer software, then you can (under 17 U.S.C. 117(a)) copy it into computer memory for the purpose of running it without infringing.
The reason that EULAs are important is because software publisher asserts that you are not an owner of a copy. And, if you're not an owner of a copy, then Section 117(a) doesn't apply. There have been court decisions on both sides of this one.
As for your arguing about temporary buffer copie
Re:Good for GPL but... (Score:4, Informative)
What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.
It makes a HUGE difference, since US copyright law specifically exempts copies that are necessarily made in the normal course of use. Those copies cannot legally be considered copyright infringement.
Specifically, the law says:
Making of Additional Copy or Adaptation by Owner of Copy. â" Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Emphasis mine, of course.
So, the GP is absolutely correct: EULA's that try to impose additional restrictions BEYOND what copyright law imposes must be interpreted as contracts, and there must be some consideration paid to the seller that justifies the buyer giving up those rights that he or she would otherwise have.
Copyleft licenses of various sorts, on the other hand, impose no restrictions that aren't already imposed by the law. Instead, they just grant permission to make copies and derived works, subject to some requirements.
In both cases, mere normal use of the program, even if that involves making copies on a hard drive, in RAM, etc., are not copyright infringement.
Parent
Re:Good for GPL but... (Score:5, Interesting)
Let's all hope. This could totally trash EULAs that some people have been attempting to enforce despite the other parties never taking the offer.
JMRI: we offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
Kamind: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that JMRI offered. The terms of copyright law are now in force.
Kamind: May I create and sell derived works?
Court: Copyright law says you may not.
Kamind: oh, crap.
Apple: We offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
User: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that Apple offered. The terms of copyright law are now in force.
User: May I install the software I bought on my computer even if Apple didn't make the computer?
Court: Copyright law says you may.
Apple: oh, crap. we should have required signing a sales contract, as a condition for obtaining the software.
Blizzard: oh, crap.
Parent
Re:Good for GPL but... (Score:5, Interesting)
Like this this? [amazon.com] You and I are unusual people; yes, we read slashdot, follow trends in the software industry, and know that many, probably most, proprietary software packages come with some sort of statement about a license. But if Joe Sixpack looks at that page the above link points to, he would have no idea that a transaction between him and Amazon causes him to be bound by a contract with a third party. He would have no reason to even suspect it. By the time he receives the box, whether there's something printed on the outside or the inside, he has already paid Amazon.
And god help him if, when the box shows up on his doorstep, someone else (e.g. his kid) opens the box and installs it on his computer. With every other contract in every part of my life, there was never even a chance that someone else who doesn't have power-of-attorney (or good forgery skills), could perform an act that gets me into a contract unknowingly. And that's not surprising; it's fundamental to the concept of responsibility.
It gets even weirder to think that when the box arrives, Joe Sixpack owns the box and its contents, but as soon as he (or someone else!? see above paragraph) looks at it or opens it and becomes aware of the existence of some license, his ownership ceases and is replaced by licensing. I guess we should call that the Heisenberg uncertainty principle of software ownership.
If the courts assert the license is binding anyway (and the courts have to, since none of the legislatures have done so), they are making a very special case, where purchases of this one type of product (software), works unlike anything else in the realm commerce.
That right is asserted inside the license. Taking advantage of that, presumes that the unwitting buyer has already read and accepted the license. What if that's not the case?
That just points out Yet Another paradoxical consequence of the ProCD court's misunderstanding. If users are bound by Apple's license when they buy software from a third party like Amazon, how did Amazon avoid being bound by the license when they bought the software from Apple? Professional resellers are even more informed about this subject than users; there's no way they can credibly assert ignorance of the contract, if users can't. The fact that "common practices" contradict a supposedly-binding requirement on the reseller, makes one question whether or not it's really a requirement.
Unconsenting/uninformed licensing raises too many paradoxes and weird situations that defy common sense and common law. It will eventually be overturned.
Parent
Re:Good for GPL but... (Score:4, Informative)
It's NOT a EULA.
The GPL doesn't cover USAGE (In fact, it explicitly prohibits the placing of any restrictions on usage by downstream recipients...)- it covers a little different thing.
It covers publication and derivative works.
If you give a copy to someone else, you're publishing a copy.
If you make a modification to the protected work and then give that to someone else, you're making a derivative work.
Neither is usage in the eyes of Copyright Law.
If you fail to abide by the terms under which you are given permission to do so by the various rights holders, you don't have their permission and thereby are guilty of straight Copyright Infringement.
Willful acts thereof are viewed in a very dim light by the Courts and the Law.
Parent
Re: (Score:3, Informative)
IANAL-- It's stronger copyright law - but for 'our' side I guess.
It's not stronger copyright law, the way copyright works has not changed at all, it's just an already existing copyright being honoured by the federal court, after for some reason a lesser court refused to honour it. I could probably explain better if I RTFA but we all know that's not going to happen
Re:Good for GPL but... (Score:5, Insightful)
It's not stronger copyright law, the way copyright works has not changed at all, it's just an already existing copyright being honoured by the federal court, after for some reason a lesser court refused to honour it. I could probably explain better if I RTFA but we all know that's not going to happen.
The judge in this case corrected a blatant error by the District Court.
Like the GPL, the Artistic License basically says "You can copy this software provided you do X, Y and Z". The correct interpretation of this license is: If I do X, Y and Z then I have the right to copy the software. If I don't do X, Y and Z, then I have no right to copy the software, and copying is copyright infringement, and courts will stop me from doing it if the copyright holder asks them. The wrong interpretation, used by the District Court, was: I have the right to copy the software. I am also obliged to X, Y and Z, and if I don't do them, then the copyright holder can sue me to do X, Y and Z or pay damages. However, the copyright holder cannot stop me from copying. As I said, this has now been declared the wrong interpretation.
Parent
Re: (Score:3, Interesting)
No, the District Court had it right. If your license says "you can copy this software provided you do X, Y, and Z", then you have a license to copy the software. No doing X, Y, and Z violates the license, but does not violate copyright law.
I can't make a license that says, "you can copy this software provided you don't pick your nose" and then sue you for copyright infringement for picking your nose.
Because lawsuits for copyright infringement have special powers (like statutory damages and a presumption of
Re: (Score:3, Informative)
I can't make a license that says, "you can copy this software provided you don't pick your nose" and then sue you for copyright infringement for picking your nose.
You absolutely can. Absent a license, I have no right to distribute your work. If you grant me a license to copy if I agree to certain conditions, and I fail to meet those conditions, then the license is void. At that point, the baseline default of "no copies allowed" as set forth in copyright law is in force.
The court was absolutely correct. When Kamind failed to meet the conditions of their license, it was revoked. From that moment on, they were distributing JMRI illegally.
Re: (Score:3, Insightful)
Put up or shut up.
I don't have to. A federal appellate court says that my interpretation is right and your's is wrong. At this moment in time, my take on it is legally verified for a very large chunk of the American population.
Re:Good for GPL but... (Score:5, Informative)
On the contrary, the issue being decided here is copyright law. To say that the Artistic License is "stronger than copyright law" makes no sense, as it relies on copyright law for its enforcement. In essence, the court ruled that the Artistic License works the same way as the GPL (even though the GPL makes it explicit and the Artistic License doesn't):
(GPL version 3, section 9; emphasis mine)
The argument made by the emphasized text is the same argument that the JMRI people made here (and that the judge agreed with).
Parent
Re: (Score:3, Informative)
This wouldn't be an EULA situation, it's a license issue on the code itself. Had the party being sued been an end user it would have been a very different situation. But they took the code, incorporated it into a product and sold that product.
Along the way they apparently violated the licensing on the code on multiple fronts and are now likely to be taken to task for doing so.
It's a much easier case to make, once you've managed to subpoena the code than enforcing a EULA would be. For instance you don't have
Re:Good for GPL but... (Score:5, Insightful)
It's not stronger copyright law, it's just common-sense upholding of contracts.
JMRI offered a license which overrides copyright law and Kamind violated the terms of that license. The court is saying that when Kamind broke the terms of the license, the copyright-defying activities that the license allowed, were no longer allowed.
If I offer to trade you a moon rock for a pint of ice cream, and you don't give me a pint of ice cream, then you don't get my moon rock. Kamind wanted to take the moon rock anyway, and then say, "Don't like it? Then sue me for the value of a pint of ice cream! Nyah nyah!" JMRI says, "No, I'm suing you for the value of my moon rock."
Parent
Re:Good for GPL but... (Score:5, Informative)
Exactly: it isn't one!
Yep, this is a fairly serious bug in those software's installers. I keep meaning to file it on OO.o's tracker...
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Re:Good for GPL but... (Score:5, Insightful)
They should put the GPL in the license agreement spot, but allow the "next" button to be clicked even if the agreement is not read or agreed to.
A small blurb saying acceptance is not required to use the software, but is required to distribute copies (modified or otherwise) would be an extra perk.
Parent
Re: (Score:3, Informative)
Whoa there, champ. Read Section 9:
Sounds like very good news for the FOSS community. (Score:3, Informative)
Re:Sounds like very good news for the FOSS communi (Score:5, Informative)
Yeah, the GPL was upheld in Germany as valid.
The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.
These licenses are NOT EULAs. They're all largely publication and derivative works licenses- with the royalties being whatever the terms of the license requires for being able to publish the stuff to downstream recipients.
No license?
No publication. No derivative works.
You publish or make a derivative work without the license to do so, you're guilty of willful infringement of the rights holders. That carries a much, much nastier penalty than accidental ones and it's something Verizon and Actiontec did NOT want to face the music on in court- so they settled out of it once it got filed.
Parent
Re: (Score:3, Informative)
I believe you mean "distribute", not "use".
Re: (Score:3, Informative)
You think that, but you should note that this is an appellate decision: JMRI actually lost the first time!
Granted, if you read the original court's decision it's obvious that the judge didn't understand the issue at all -- which is not necessarily the judge's fault, as JMRI's case wasn't argued very competently in my opinion -- but it still happened.
Oh Hell Yes (Score:5, Funny)
Finally, a court for the 21st century! (Score:5, Insightful)
Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.
This too:
The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit... Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.
Good to know the court system can still work!
Good job, Federal Court of Appeals! Some comments: (Score:3, Interesting)
Agreed! I did read through the entire judgement --I figured I'd take my turn as the 0.1% of Slashdot to read the article so that the rest of Slashdot didn't-- and here are some comments.
This judge. Jeffrey S. White, was surprisingly familiar with free and open source licenses, mentioning the GNU GPL and the MIT OpenCourseware licenses. I wonder if he already had some familiarity, or whether it was th
Re: (Score:3, Insightful)
I'm not sure what the court's exact definition of 'charging for a license' is there (and I don't have that Wallace v. IBM reference handy), but the GPL isn't actually supposed to prohibit distributors from charging, it just makes charging impractical because they have to provide the whole code as well.
Let's say I have the source code and executable code for the gcc compilers on my hard drive at home. I can sell you the executable code for a million dollars if you are stupid enough to pay that amount; that is perfectly legal under the GPL. You can then ask me for the source code; I can charge you my cost for providing the source code (lets be generous, 20 dollars for burning a CD and mailing it to you). You decide that you want to give copies to your friends, so you need a license to do this. I have to gi
Smack down (Score:5, Informative)
Katzer and company really need to be smacked down.
On their web site, they try to create the impression that they had their own solution and didn't copy any code from the open source guys, but, then, in court, they fully admit that they in fact, did that.
So, they stole a bunch of code, made some money on it, then, they admitted it in court, but continue to lie to the public about what they did.
I mean, how sickening is that?
Re:Smack down (Score:5, Informative)
It's not even just that: Katzer also went and got patents over the concepts expressed in JMRI, which were only granted because he failed to disclose JMRI's prior art to the patent office, and then sued the JMRI people for infringement of their own code!
The open source guys didn't even start this; Katzer did. He brought it upon himself!
JMRI has a long and detailed page [sourceforge.net] describing what happened. I highly recommend everyone reading it; it's amazing how brazenly this prick Katzer (and his lawyer) tried to rip everybody off.
Parent
Re: (Score:3, Insightful)
How bad is our legal system when Kratzer can lie cheat and steal, then require others to spend large amounts of time and money to defend their creation?
Thankfully justice is achieved in the end... but it's not even over, theres still motions in the court system. Put this guy in jail already.
Re:Smack down (Score:5, Informative)
What justice?
Bob Jacobsen has paid Katzer $30,000 in judgments [sourceforge.net] against Jacobsen, as well as his own legal fees. Katzer's made money off his product and gotten his legal costs paid for, and as I read the judgments, has yet to actually lose anything other than three of his 12 patents.
Katzer isn't winning, but JMRI is suffering a lot more than Katzer is.
I'm glad the court ruled the way it did but a lot of JMRI people have gotten pretty badly ground up along the way. This is only justice insofar as the rest of FOSS has dodged a bullet.
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Re: (Score:3, Interesting)
Reading the tortured history of this case was a real eye-opener. I hadn't really thought about the lengths that some people will apparently go to steal from the community, lie to regulators, and engage in what must have been a very expensive legal fight.
You've got to wonder what the motivation is. Is there really that much money in model train software? Or is this someone who has money to throw at whatever they want?
Dig around a bit... and you find some interesting things.
It seems Katzer and his parnter [ingoodtastestore.com] have made a sizable donation to the University of Oregon in the tune of "$1.25 million [uoregon.edu] for computer labs, software and a technology endowment fund." That's a nice chunk of change to throw around. Where does it come from?
It's interesting to note that Kat
Which version? (Score:5, Interesting)
"You" is you, if you're thinking about copying or distributing this Package.
That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves. Also, the license is automatically binding for anyone who is thinking about using the license? Compare to a Creative Commons license, where
"You" means an individual or entity exercising rights under this License...
You'd think programmers would know better than to let ambiguities like that by. (And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road.)
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What did you expect? The name of the thing is a pun!
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Now we're on Track (Score:5, Funny)
This is rail nice. I do believe open licenses are at a critical junction. Kamind certainly bit off more than they can choo.
Re:Now we're on Track (Score:4, Funny)
I should have posted this anonymously. I'm a freight of getting modded down.
Parent
What about the $30,000? (Score:5, Insightful)
I want to know if Bob Jacobsen got his $30,000 (legal fees paid to the scum suckers) back.
Re:What about the $30,000? (Score:4, Informative)
Don't worry, with this ruling he will. He's now eligible for disgorgement of profits, statutory damages, punitive awards, legal fees and expenses. I imagine the legal expenses alone is going to be rather massive but tack in a few statutory damages at $150K per violation (for every single file they stripped the copyright notice from which exceeds 300 files by my reading of the JMRI site and possibly each of these violations applies for each distribution of Katzer's product so if he sold 10 copies he's on the hook for 3000 violations of copyright). Jacobsen's not going to end up with millions but my guess is Jacobsen is going to get back every dime he spent probably three times over and he won't be paying any legal bills. My hope is they can destroy Katzer financially, his behavior is reprehensible and he should be punished for it.
Keep following the Saga though, this Katzer guy is as slimy as SCO. He'll probably try to fend off any judgement with Bankruptcy just like SCO.
Parent
Re: (Score:3, Informative)
This holding wouldn't be controlling outside the Federal Circuit, but it'd be considered very persuasive. Basically having two Appeals Courts make contradictory rulings is one of the fastest ways to get the Supreme Court to take the appeal and resolve the conflict, and the only constant there is that if that happens at least one of the Appeals Courts will be told they were wrong. So Appeals Courts try not to make contradictory rulings. And District Court judges try not to make rulings that their controlling