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How not to handle a licensing violationHow not to handle a licensing violationPosted Apr 12, 2007 7:42 UTC (Thu) by rickmoen (subscriber, #6943)In reply to: How not to handle a licensing violation by cventers Parent article: How not to handle a licensing violation cventers wrote: I could see the mistake scenario you describe happening, but if it was happening over a longer term... isn't it a little harder to justify? It's so difficult that neither I, nor Marcus, nor anyone else to my knowledge has attempted to do so. (I hope you noticed my sentence "Either way, it's copyright violation, and needed to be fixed....) Anyway, if you're asking if I think it credible for third-party borrowings to be checked into CVS multiple times without the committer quite noticing his failure to replace them, I 'd say yes. Rick Moen
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How not to handle a licensing violation Posted Apr 12, 2007 8:52 UTC (Thu) by nim-nim (subscriber, #34454) [Link] The thread showed the OpenBSD developper didn't take GPL code, commited it in CVS and forgot about it, but that he replaced some OpenBSD-rewritten code with new GPL code later, and then commited the result.
So the infrigement occured several times in a row and he really couldn't pretend he was working on replacing an initial GPL cut & paste
(also taking some outside code and replacing it peacemeal while having the original code under the eyes is probably not legit legal-wise, and he didn't even had the "excuse" there was no hardware docs because the Linux people had set up a separate documentation project for the hardware)
How not to handle a licensing violation Posted Apr 12, 2007 16:13 UTC (Thu) by rickmoen (subscriber, #6943) [Link] "nim-nim" wrote:So the infrigement occured several times in a row and he really couldn't pretend he was working on replacing an initial GPL cut & paste That conclusion strikes me as non-sequitur: Nothing prevents Marcus having borrowed bcm43xx code several times and intending to rewrite it each time. Failing to do so is negligent, of course. (also taking some outside code and replacing it peacemeal while having the original code under the eyes is probably not legit legal-wise This opinion strikes me as ill-informed about copyright law. You might wish to read some caselaw on the meaning of "derivative work" as applied by the courts to software. Rick Moen
How not to handle a licensing violation Posted Apr 12, 2007 17:21 UTC (Thu) by ajross (subscriber, #4563) [Link] You might wish to read some caselaw on the meaning of "derivative work" as applied by the courts to software. I think you might be overstepping here. At best, "derived work" in software is a nebulous concept. Wikipedia comes up with the following two links (by Larry Rosen and Dan Ravicher -- real lawyers, even!) which are considerably more circumspect in their pronouncements: http://www.rosenlaw.com/lj19.htm Certainly to me, a very clear common sense argument can be made that "piecewise replacement" is the software equivalent of, say, art forgery. The resulting work represents the efforts of its author, but is so tainted by the design of the original that it can't be viewed as a separate work. At the same time, one could reasonably argue that only the final work generated from such a replacement regime should be judged on its own as a single entity -- that the "derived" property is of the work as it is, and not a function of its history. If it can be shown to be clearly distinct and different, then it should be legal. This is the theory supported by the AT&T/Berkeley lawsuit, for example (although it should be pointed out that this was a settlement, not a judgement, and one driven largely by Novell's lack of interest in pursuing the case for a comparatively minor product, not necessarily by weakness of the case itself). The difference on both ends of the spectrum seem to be ones of degree; there is no "bright line" test here. So as a practical matter, I'd strongly argue that the kind of "copy and replace" development methodology used by OpenBSD here is inherently risky, and a generally bad idea. Its legality isn't nearly as obvious to me as it seems to be to you.
How not to handle a licensing violation Posted Apr 12, 2007 17:49 UTC (Thu) by rickmoen (subscriber, #6943) [Link] ajross wrote:I think you might be overstepping here. I think you might need to read and understand the leading caselaw (e.g., Micro Star v. Formgen, Lewis Galoob Toys, Inc. v. Nintendo of America, etc.). I have done so (for USA jurisdictions); I'm pretty sure you have not. ...tainted by the design of the original... See, "design" would have to be a patent encumbrance, if at all. Copyrights are abstract properties concerning expressive elements of creative works (in areas of endeavour defined by statute). Patents are abstract properties concerning (useful) ideas and methods. Designs per se are not eligible for copyright, which is why typefaces ("fonts") do not have copyright ownership (though their hinting programs do). Particular expressions of a design, if put into fixed form and judged to have sufficient creative content, do give rise to copyright ownership. See the difference? (By the way, the legal term is "derivative work", e.g., in 17 U.S.C. 103. This alternate form "derived work" appears to have recently caught on primarily among open source free-software people, I notice.) Rick Moen
How not to handle a licensing violation Posted Apr 12, 2007 18:10 UTC (Thu) by ajross (subscriber, #4563) [Link] See, "design" would have to be a patent encumbrance, if at all. No, that's just wrong. Or rather, it's true only for definitions of "design" that don't match the clear context of what I wrote. You're picking on the vocabulary in my post, not the meaning: that's just bad form. Yes, there are area of patent law that treat "design" as jargon. That doesn't prevent one from using the word in contexts where it has its more traditional meaning. I'll try once more, and then leave you to your flames: Taking a C file and changing all the symbol names constitutes infringement, agreed? Doing the same, but re-ordering them constitutes infringement, yes? Inlining one into another is still infringing, yes? Changing the calling order of two statements is still infringing, yes? Likewise, the addition of new code doesn't change the infringing status. And yet, after enough of those changes, the work stops being derived (last I checked, that was a synonym for "derivative", by the way -- y'know, even legal arguments get to use English, too!) and starts being a unique, copyrighted work. My point is that the distinction between these states is not a bright line (ooh! a legal term!), but in fact a squishy mess. And that it is therefore best avoided by concientious developers. So please stop with the amateur legalese. The abundantly evident truth is that real lawyers and real courts don't think this is a clear area of law, and don't have unambiguous advice for us. The world isn't as simple as you believe, and continuing to act as if it is can only lead to precicely the mistakes seen by the OpenBSD team here.
How not to handle a licensing violation Posted Apr 12, 2007 18:59 UTC (Thu) by rickmoen (subscriber, #6943) [Link] ajross wrote:You're picking on the vocabulary in my post, not the meaning: that's just bad form. I'm honestly sorry if I misunderstood what you meant by the word "design", but I really was doing my best to read in proper context. You seemed to be saying that, even after all the borrowed bcm43xx code was replaced by from-scratch replacement code, some Platonic essence of the original, the "design", inevitably would remain. And, sorry, that's just not how copyright caselaw has developed. But let's discuss how it would be applied. I think we turn out to be in substantive agreement on that. The court (again, assuming US jurisdiction) would look for both literal and non-literal copying. For the latter, it would apply the "abstraction, filteration, comparison" test developed in CAI v. Altai, looking for expressive elements copied in a non-literal fashion. (Non-expressive, e.g., strictly functional elements are not entitled to copyright.) If there is a substantive amount of copying of expressive elements, and it wasn't explicitly permitted, and it doesn't fall into one of the allowed categories, and plaintiff has valid title, then there would be a ruling of infringement. And indeed, there isn't a bright line. The courts had a rough time working out even those guidelines. If you'd read the caselaw, you'd have known that quite a while ago. ;-) Also, sorry, I'm not going to try to understand software law and leave it solely to the courtroom gladiators. It's too important to remain ignorant of. You shouldn't, either. Rick Moen
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