Midway v. Arctic International [LWN.net]

Midway v. Arctic International

Posted Mar 28, 2009 4:52 UTC (Sat) by butlerm (subscriber, #13312)
Parent article: OSBC: Life at the edge of the GPL

I don't contest the potential applicability here, but Midway Mfg v. Arctic International is remarkably bad law. Artic International was held to be a contributory copyright infringer for selling what amounted to a CPU speedup kit. This was not concluded on any textual basis, but rather on an attempt to divine the legislative intent behind the definition of a "derivative work", i.e. if it affects the plaintiff's business, it must be derivative, no matter how trivial the combination is. By the Midway standard, inserting an unlicensed network adapter could be an infringement on the copyright of the motherboard manufacturer.

The other problem with many of the theories enumerated here is that they have never been tested. Is Samba a derivative work of Windows just because they communicate using the same protocol, for example? Or how about the suggestion that "mere aggregation" creates derivative works? In addition, the idea that the order of fields in an API structure isn't functional is laughable on its face. If you change the order, the API ceases to function.

Of course the ultimate problem here is that historically the courts have been heavily biased in favor of the copyright holders on the most trivial points, with no basis in positive law, such that as with patents, their decisions tend to function as a net drag on the progress of science and the useful arts, rather than any kind of benefit. Congress could easily fix this problem, but unfortunately they tend to abdicate their responsibility on such matters.

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Aggregation as derivation

Posted Mar 28, 2009 19:33 UTC (Sat) by man_ls (subscriber, #15091) [Link]

Or how about the suggestion that "mere aggregation" creates derivative works?

Yes, quite irrelevant. It doesn't matter because the GPL allows "mere aggregation", so it is not important if the result is a derivative work or not.

Actually the GPL doesn't even care about derivative works, it says that you can distribute the software with or without modifications if you comply with certain conditions -- and "mere aggregation" with proprietary software is allowed. Of course you cannot distribute original or derivative works without a license, and the GPL wouldn't even kick in if you are not doing this distribution; but once you do distribute you have to follow the rules in the GPL (not copyright law).

IANAL (in case you haven't guessed).

It's so obvious it's not even funny

Posted Mar 28, 2009 20:02 UTC (Sat) by khim (subscriber, #9252) [Link]

Or how about the suggestion that "mere aggregation" creates derivative works?

Actually GPL specifically says that "mere aggregation" is allowed because of course "mere aggregation" produces derived work (such compound works are governed by special rules in many jusrisdictions thus they are not "usual" derived works, but they are derived works nevertheless). Collected stories were inveted hundreds of years ago - and usualy they need specific permissions from all authors. If Joe hates Jane and says that he does not want to see their works under some cover... well - that's it. Compare with GPL which specifically says that authors don't care if unrelated story is placed under same cover.

Of course you cannot distribute original or derivative works without a license, and the GPL wouldn't even kick in if you are not doing this distribution; but once you do distribute you have to follow the rules in the GPL (not copyright law).

That's not exactly true: copyright law can supersede GPL but since default is "you have no right to distribute this period" GPL can force you to do many different things. In many countries you have rights beyond license (for example usually you can change anything in program - even in binary, proprietary blob - if it's the only way to make program work on your hardware), but usually all such rights are limited to private modifications (you can publish info about how program should be modified to work with hirdware like yours but generally you can not distribute modified version without license).

Mere Aggregation

Posted Mar 30, 2009 15:54 UTC (Mon) by butlerm (subscriber, #13312) [Link]

I should clarify what I meant to say here. Of course distribution of a "mere aggregation" on the same medium creates a derivative work in the form of the aggregate or collection. What it doesn't do is make the elements of the whole derivatives of eachother.

So the copyright holders of a software module can control how, where, and when that module is distributed, and in particular what other works it can be inseparably distributed with (e.g. on the same CD). That is well established. References to such collective works can be found in federal copyright law.

However, publishing a collection of stories most certainly does not, in and of itself, make each of the stories derivative works of each other. Suppose you statically linked proprietary code into an open source program, or open source code into a proprietary program. That certainly makes the whole a derivative work, but it certainly does not make, in and of itself, the components derivatives of eachother. That was SCO's rather ridiculous theory - i.e. that e.g. Linux JFS was a derivative work of a proprietary Unix because it some point in its history its predecessors had been linked to proprietary code.

So my point is (barring some bizarre judicial invention) a derivative work (logically at least) has to be "substantially similar" in some inclusive way to the work it is "based upon". "Access and substantial similarity" sounds like a good rule of thumb to me, as long as an exception is made for purely functional interfaces at the boundaries.

Midway v. Arctic International

Posted Mar 28, 2009 20:18 UTC (Sat) by jordanb (guest, #45668) [Link]

It should be noted that there was a later case that found the opposite way: Lewis Galoob Toys v. Nintendo of America.

The Galoob dispute was over the "Game Genie" device that you stuck in between the ROM cartridge and the NES game console, which let you poke data into memory locations to change the game. Nintendo tried to argue that doing so created what constituted a derivative work. The court decided that a customer experimenting with the copy they bought is not the creation of derivative work, and even if it were, that'd be fair use.

According to Wikipedia, Galoob was affirmed in the 9th Appellate Circuit and appealed to the Supreme Court, and Certiorari was denied.

> Of course the ultimate problem here is that historically the courts have
> been heavily biased in favor of the copyright holders on the most
> trivial points, with no basis in positive law,

When publishing was a very capital-heavy industry there was no ability for the average individual to participate, so copyright was merely an industrial regulation. When disputes did land in the courts they found both sides well-funded and well-represented and interested in finding a resolution that left the system basically intact, robust, and equitable.

In the 80s and 90s, technology improved to the point where individuals could begin to participate in the reproduction of creative works. Early on, I think, the legal establishment recognized that the industrial regulation should not extend into the homes and social circles of individuals, so you got reforms like the Home Recording Act.

Two things changed that, I believe. The first was the rhetoric about the "knowledge economy" in the 90s -- particularly as an answer to the decline of industrial production in the United States. It was intuitive that a "knowledge economy" needed strong "knowledge property" (so long as you avoided thinking about the very real differences between 'knowledge' and phyisical objects).

The second was the rapid increase in the scale of casual copying. People copying 8-track tapes were unlikely to bring down or even seriously impact the revenues of the music publishing industry. Yet now a musical recording can be copied millions of times and distributed across the planet all for virtually no cost. The result is that an entire industry has been rendered obsolete. Music doesn't need to be published anymore than ice needs delivered in insulated trucks.

Large, powerful industries don't implode quietly, however. Also other "content creation" and publishing industries are looking at music publishing and thinking "there but for the grace of God go I." So now we're in a situation where all the money in Intellectual Property is interested in nothing other than making it stronger, making it more universal, and applying it directly to the activities of individuals.

Midway v. Arctic International

Posted Mar 30, 2009 4:20 UTC (Mon) by jeffnorman (guest, #57684) [Link]

Yes but Galoob was a very narrow rationale that has very little
applicability outside gaming, and Galoob has not been followed anywhere
outside the 9th circuit (and has been subject to some pretty heavy
criticism).

Basically, the Ninth Circuit in Galoob held that an enhancement to a screen
display was not "fixed" sufficiently to constitute a derivative work. The
"fixation" requirement imposed by Galoob (literally, the "pink sunglasses
test" was used by the court to determine whether fixation occurs in the
retina) has been justly riduculed and makes very little sense.

In any case, Galoob does not apply to code, only to screen displays because
they are not fixed.