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How not to handle a licensing violation

How not to handle a licensing violation

Posted Apr 12, 2007 17:49 UTC (Thu) by rickmoen (subscriber, #6943)
In reply to: How not to handle a licensing violation by ajross
Parent article: How not to handle a licensing violation

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

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How not to handle a licensing violation

Posted Apr 12, 2007 18:10 UTC (Thu) by ajross (guest, #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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