John Maddock wrote: [...]
Interesting defense too: "even if we did pinch some code, it isn't worth anything, so we shouldn't be punished". Paraphrasing of course and since
http://terekhov.de/178.pdf "... the facts in this case indicate that if Plaintiffs were to prevail, a monetary award would adequately compensate them. It is well established that irreparable injury means injury for which a monetary award cannot be adequate compensation. Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917 (2d Cir. 1986). And where money damages are adequate compensation, a preliminary injunction will not issue . . . Id. at 918. In this case, Plaintiffs contemplated that a monetary award would be sufficient compensation, evidenced by a Fiscal Sponsorship Agreement on BusyBox. (Roberg-Perez Decl. Ex. C.) Plaintiffs agreed that, in connection with license compliance efforts, funds would be collected and deposited in an account, with monies to be used for further enforcement efforts and/or other BusyBox-related activities. (Id. at ¶¶ 5, 6.) Nowhere does the Fiscal Sponsorship Agreement suggest that there would be any injury to either Plaintiff not redressable by a monetary award. (Id.) While the arguments in their Motion are not supported by evidence, it is important to note that those arguments also do not establish irreparable harm. Acting as if they have a copyright to the entire BusyBox program, Plaintiffs argue that they will lose control over the modification and distribution of BusyBox and the considerable market share and reputation they have established in BusyBox. (Dkt. No. 164 at 12.) But Mr. Andersen does not have a copyright in the entire BusyBox program, or to all versions of BusyBox, and neither Plaintiff has rights to its market share or its reputation. And, even if sales of the accused Blu-ray players were to be enjoined, the Blu-ray software chips containing the accused code would still be distributed by a third party, Broadcom, to its other customers in the Blu-ray industry. (Khan Decl. at ¶ 2.) Thus, to the extent that Plaintiffs are concerned about distribution of object code containing BusyBox, exactly the same object code would continue to be distributed to the public, through Broadcoms other customers. Moreover, Mr. Andersen could not identify specific harms to market share or reputation when given the chance to do so in his deposition. He admitted that he would have to speculate as to whether the sale of the accused Best Buy Blu-ray players decreased the number of individuals using BusyBox. (Roberg-Perez Decl. Ex. F, at 151:24-152:8.) He could name no specific instances where his reputation was adversely affected because of the sale of the accused players, admitted that he was not personally aware of anyone who had maligned his reputation, and had no knowledge of any way in which his reputation had been harmed. (Roberg-Perez Decl. Ex. F, at 144:3-17, 150:4-13.) Nor could he identify any business he has lost because of the sale of the accused players. (Id. at 150:14-151:12.) Last, Plaintiffs delayed bring their motion for a preliminary injunction for 14 months. Courts have routinely considered the delay in bringing such a motion as evidence that the Plaintiffs truly felt no legitimate threat of irreparable harm. See, e.g., Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985) (Delay in seeking enforcement of [a preliminary injunction] . . . tends to indicate at least a reduced need for such drastic, speedy action.); Magnet Commcns., LLC v. Magnet Commcns, Inc., No. 00 Civ. 5746, 2001 U.S. Dist. LEXIS 14460, at *4-5 (S.D.N.Y. Sept. 7, 2001) (denying a request for a preliminary injunction where defendant in a declaratory judgment action did not move for injunctive relief until twelve weeks after the complaint was filed); Gidatex, S.R.L. v. Campaniello Imports, Ltd., 13 F. Supp. 2d 417, 419 (S.D.N.Y. 1998) (noting that delay standing alone, may preclude the granting of preliminary injunctive relief); Chase Manhattan Corp. v. Nw. Mut. Life, Civ. No. 92 Civ. 4978, 193 U.S. 82047288. 1 19 Dist. LEXIS 2271, at *5, 11 (S.D.N.Y. Feb. 27, 1993) (denying a preliminary injunction where plaintiffs did not make their motion until six months after filing suit). Plaintiffs previously advised the Court that their delay should be excused because the parties had been engaged in settlement discussions. (Status Conference Hearing (2/2/11) Tr., Dkt. No. 170 at 24-25.) Plaintiffs have injected settlement discussions into the dispute. Those discussions are also independently admissible pursuant to Rule 408 to establish an absence of delay on Best Buys part. The settlement discussions indicate that Plaintiffs, not Best Buy, caused the delay by trying to muscle unbridled veto power over Best Buy products based upon their ever-shifting, self-serving views of other open source code irrelevant to this case. In the absence of any showing of actual and specific harm to either Plaintiff, the request for a preliminary injunction should be denied." 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.)