BayStar seeks to retrieve investment in SCO

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It's a start. (More of a pop quiz than a test)

The German GPL case you cite could be the basis for a test, but a decision such as this one, a decision for a preliminary injunction, is more a good grade on a pop quiz - passing the class is only made likely, not guaranteed. The result is likely in the GPL's favour, but anything can happen along the way to prevent the test from being graded - everything from settlement to a bungled case to a successful appeal.

A preliminary injunction is granted to prevent behaviour while the case is tried or settled. In a US court a preliminary injunction is issued only if the convening authority thinks the injuntor is likely to succeed on the merits of their case and is being caused irrepairable harm should behaviour continue. However, the case you cite is in a German court and I cannot speak to what standard is applied in their courts. Let's pretend, for purposes of argument, that the standard is the same.

I'd certainly be of good cheer, but not cheering, and certainly not be asking US commentators to eat crow, over that judge's decision. An injunction is based only a preliminary opinion: a statement of "I think you might pass the court test." That decision is not legally binding on anyone, even on other GPL cases in the same jurisdiction, rather such decisions would be rendered on a case by case basis by that cases' judge. The opinion of this judge is non-binding on other cases.

Let's also not forget also that this judge is applying German copyright law, and while their law may be substantially similar to the Berne convention (the US copyright acts both are and aren't) theirs (like the US') may not match precisely (and maybe not match in the same ways that the US' does not match). Thus the injunction might be "successful" under a legal theory not described by US laws and therefore cannot be relied upon as even a persuasive authority in the US or indeed in any other country than Germany.

The theory of German law may also vary from the practice under German precedent. Imagine: German jurisprudence may have a precedent of granting injunction in any copyright case. Such precedent might make an assumption of damage to the copyright holder leaving the judge only needing to determine the merits. Thus as a test the judge's opinion would hold in Germany, but not in another country where no such assumption is made.

Most of those who are being asked to eat crow are US citizens and care very little for the laws elsewhere: sad, but true. They won't see one judge's non-binding opinion of the GPL as a test. I'm a GPL advocate and I don't.

A test is one where the full wieght of legal scrutiny is brought to bear, where a theory is tested in the crucible of the courtroom, and runs pure and positive through the other side of the forge. Until then, the best we can say is that the German ruling is a positive indicator that such a test might be successful in Germany. Elsewhere? Who knows. Right now: the opinion isn't even relevant outside of one courtroom in Germany. It's a start: a good one to be sure, but like the pullout of Baystar, only a start.

I wouldn't eat crow over such decisions, and I certainly wouldn't demand anyonelse to either.

Posted by: John Le'Brecage   Posted on: 04/17/04 You are currently: a Guest | Members login | Terms of Use

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