How will the court decide? [LWN.net]

How will the court decide?

Posted May 16, 2003 17:28 UTC (Fri) by tjc (guest, #137)
Parent article: ...and if SCO is right...?

The thing that concerns me most is that (as far as I know, which isn't very far in legal matters) there is no legal precedent for judging source code. Will the court have enough understanding to discern the difference between programming interfaces and the actual implementation of such an interface? Will they recongnize that there are certain idioms for coding that are commonly used and are not part of anyone's IP? Will they rely on the advice of "technical experts" (who may have an agenda of their own) in making a decision?

Beyond that, how will they determine if code has been deliberately obfuscated? As a simple example, it's easy to see that this:

if (foo) a = 1; else a = 2;

is about the same as this:

z = bar ? 1 : 2;

...but there is no way to prove that this code has been deliberately changed to mask it's origins. Code translation is not a lossless process in that one's intentions can not be determined by looking at a chunk of code. Speculation is as far as this can go.

There are a lot of things that will be decided by people who may not be qualified to make a reasonable decision.

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How will the court decide?

Posted May 16, 2003 21:15 UTC (Fri) by tjc (guest, #137) [Link]

The law does not take semantics into account but only the actual text.

That sort of takes the teeth out of the license, don't you think? If someone can come along and just reformat the code, change variable names, and restructure things a bit, then there isn't much practical difference between the GPL and the X11 license.

As an example, suppose I start with a window manager that's licensed under the GPL and rewrite every line of code as described above and release it under an X11 license: have I violated the GPL? I used GPLed code during the development phase of my project, but at the end, none of it remains.

Now supposed someone did this with SCO code in the Linux kernel. It can't be proven that this was done unless a chunk of code was copied in unchanged. But SCO seems to be saying that code has been copied into the Linux kernel and "obfuscated", and they expect a court to make some determination as to whether this was done or not. If a programmer can't tell for certain, what's the judge going to do?

How will the court decide?

Posted May 17, 2003 9:51 UTC (Sat) by arcticwolf (guest, #8341) [Link]

If a programmer can't tell for certain, what's the judge going to do?

Easy: innocent until proven otherwise.

How will the court decide?

Posted May 17, 2003 20:48 UTC (Sat) by pflugstad (subscriber, #224) [Link]

> Easy: innocent until proven otherwise.

I believe that's a criminal assertion. I don't think it applies to civil courts, does it?

How will the court decide?

Posted May 19, 2003 1:49 UTC (Mon) by Baylink (guest, #755) [Link]

The standard in civil litigation is "the preponderance of the evidence".

That might be a *much* harder standard to meet in this case, requiring
*someone* to spend lots of money on lawyers to provide said evidence.

Oh, that's IBM. Never mind...

How will the court decide?

Posted May 23, 2003 16:49 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

That's not really true. Copyright law explicitly does cover translations of texts into other languages. That can *only* be evaluated in terms of semantics.

Also, I really doubt that you can take a Steven King novel, change the names of the characters, reword each sentence slightly, and have the result found by a court to not infringe the copyright.

Copyright protects the expression of an idea, not the idea, but it is up to a court to decide whether a different work is just a variant of the same expression, or a new and different expression of the same idea.