In-kernel driver or FUSE based?

Posted Aug 27, 2009 4:58 UTC (Thu) by BrucePerens (guest, #2510)
In reply to: In-kernel driver or FUSE based? by rickmoen
Parent article: Tuxera signs up with Microsoft

Walker's opinion actually creates some confusion. He shows how code that exists only to interface to an API, within an application program, is not protectable. He doesn't distinguish that the expression in the creation of an API that serves to applications is protectable and that unprotectable code that is derived from the API is indeed a derivative work of it. He doesn't point out that his version of the test (filtering the work derived from) might show the API as a protectable work when the lower court's version of the text (filtering the derivative work) would not. He also puts in some text regarding "code that exists to fulfill expectations of the application" that further confuses the issue.

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In-kernel driver or FUSE based?

Posted Aug 28, 2009 22:21 UTC (Fri) by Wol (subscriber, #4433) [Link] (1 responses)

I would also *feel* that if an API is declared "GPL only" by its author, then a Judge would be inclined, at least, to bow to the *clearly* *expressed* wishes of the author.

It's one thing giving a deriver the benefit of the doubt where the law is unclear and the original author's wishes are unclear. It's a whole different kettle of fish where the original author has made their wishes abundantly clear - if the law isn't clear then benefit of the doubt should go to the author. I know it's not really a legal principle, but I do feel that if someone goes asking for trouble they have no grounds for complaint when they get it!

Cheers,
Wol

In-kernel driver or FUSE based?

Posted Aug 28, 2009 22:28 UTC (Fri) by BrucePerens (guest, #2510) [Link]

I would also *feel* that if an API is declared "GPL only" by its author, then a Judge would be inclined, at least, to bow to the *clearly* *expressed* wishes of the author.

That is definitely the ethical thing to do where Free Software is involved. The developer gets no "consideration" (that means money or some other valuable) except for compliance with his license, and if you can't comply you shouldn't use his code.

But I just re-read Walker's opinion in CAI v. Altai, and he doesn't mention the author's intentions at all in his long and detailed description of how to determine if a work is infringing. He goes entirely by copyright law.

So, it doesn't seem to me the judge is going to agree with us.