OT - Rant against case law [LWN.net]

OT - Rant against case law

Posted Nov 17, 2009 12:10 UTC (Tue) by Felix.Braun (subscriber, #3032)
In reply to: SamyGO: replacing television firmware by dwmw2
Parent article: SamyGO: replacing television firmware

But of course nobody is right or wrong until it's been heard in court.

Just for the record, the quoted statement would only be true if courts could never be wrong. That is, if they had an authoritative say on what the law should be.

As a (non common law) lawyer, I take exception at this view. Judges are just opinionated people who have been handed some robes (and in the UK maybe some wigs) by the politicians. They are just as likely to make mistakes as the next guy. They are not inherently more likely to be right than anybody else, even *gasp* non-lawyers. Of course, judges themselves know this, and they therefore appreciate a well reasoned argument, no matter who makes it. Generally speaking, even after having decided a case.

Of course, in practice the legal traditions work out to be remarkably similar. But I really do blame the case law system with it's principle of stare decisis for instilling such an attitude of unreflected acceptance in otherwise critically thinking legal laymen.

SCNR </completly off-topic rant>

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OT - Rant against case law

Posted Nov 17, 2009 12:47 UTC (Tue) by dwmw2 (subscriber, #2063) [Link]

I understand your objection; allow me to rephrase that final sentence for you, to properly express the implicit subtext...

But nobody is right or wrong; it's not black and white. It's just a document written in English and there can be many different interpretations of it; ranging from the sane interpretations to the utterly nonsensical ones such as the "counter-arguments" I mentioned above.

There are very few interpretations which actually matter, though. The first one which matters to you might be the opinion of your company lawyer, when you consider shipping a product which violates the GPL by including both a kernel and a binary-only module in the same coherent whole. Or, as the GPL phrases it, in a "derivative or collective work based on" Linux.

If he is doing his job properly, he will prevent you from doing that. On the other hand if he doesn't do his job properly, you may well end up bumping up against an opinion which takes precedence over his — the opinion expressed by the (final appeal) court when you are sued for copyright violation.

That opinion, ultimately, is the only one which really matters. It doesn't make it right, and there's plenty of examples of cases where the courts have got things "wrong" in the eyes of many people. But it is the only interpretation which really matters in the end, in practical terms.

Unless, of course, you think the revolution is going to be triggered by a copyright case... :)

OT - Rant against case law

Posted Nov 17, 2009 14:51 UTC (Tue) by Felix.Braun (subscriber, #3032) [Link]

Thank you for that. That makes me feel much better :-)

OT - Rant against case law

Posted Nov 18, 2009 4:53 UTC (Wed) by butlerm (subscriber, #13312) [Link]

I think the implication against joint (collective) distribution is entirely
reasonable. My problem is when people say something like "this filesystem
was first developed for Linux", therefore it (in any form) is a derived
work of the Linux kernel, and that derivative status infects it to the
degree that it remains a derivative work even when all the Linux related
code is stripped out.

That was SCO's theory regarding JFS. It was first developed for a
proprietary Unix licensed from source code SCO claimed it had the copyright
to, therefore (so they claimed) any version for any other operating system
was also a derivative work of Unix System V (and they were owed billions in
royalties).

I call that the "derivative work by contagion" theory, and it is one of the
reasons why people shouldn't blindly go around claiming things are
derivative works when there is no rational theory for why that should be
the case. Combination may produce a copyright protected collective work,
but the mere fact of combination certainly does not necessarily infect each
of the original components with derivative status when considered
separately, and more especially when the kernel specific binding code is
removed. That would be like saying if a photo is printed in a magazine,
not only is the photo a derivative work of the magazine, the magazine is a
derivative work of the photo.

OT - Rant against case law

Posted Nov 18, 2009 10:27 UTC (Wed) by anselm (subscriber, #2796) [Link]

The fun thing about IBM's JFS as available in the Linux kernel was that the JFS code IBM contributed to Linux didn't in fact have anything to do with the JFS code in AIX (which SCO claimed was a derived work of Unix).

The Linux JFS code is a port of the reimplementation from scratch of JFS that IBM did for OS/2, so it couldn't have been »infected« with SCO-owned code because it never actually came in contact with any.