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Subject: Re: [boost] [trolling] Alexander's crusade
From: Alexander Terekhov (terekhov_at_[hidden])
Date: 2011-05-09 12:29:35

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

"... 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 Broadcom’s other

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 Commc’ns., LLC v. Magnet
Commc’ns, 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 Buy’s 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."


(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.)

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