A GPL-enforcement suit against VMware

I remember getting reamed on LWN for arguing that the trial judge's judgment was unlikely to stand on appeal, because U.S. copyright law as it stands today is unfortunately broad enough to easily cover APIs, and it would take a Supreme Court decision to firmly change the weight of precedent. I think the trial judge knew this, but was courageous enough to stick his neck out, and I hope SCOTUS follows his lead. Lesser judges (i.e. most of them) would have chickened out.

I also remember getting reamed for suggesting that Google's failure to publish mangled Linux kernel headers was also illegal. The issues are identical in both cases--whether or not an API (e.g. function declarations and type definitions alone) is copyrightable.

The problem with discussing copyright law in the open source community is that the only lawyers who communicate with the community are lawyers who have very strong opinions about and in many cases very unrepresentative interpretations of the law. Then developers assume that they're being told the plain truth of the law, perhaps with the implied caveat that errant judges might on occasion come to wrong conclusions.

Someone more cynical than me might suggest that many lawyers--including lawyers like Lessig and Moglen--intentionally impress upon the community dubious interpretations of the law in the hope that by shifting behavior and expectations of developers they can someday appeal to the commercial norms and expectations that they helped to craft. Many academic lawyers predicate their career on trying to change the law through scholarly persuasion of jurists, on the one hand, and working with particular communities on the other. Corporate lawyers do this all the time--publish a scholarly paper with an idea, advocate the idea through business journals, convince certain corporations to adopt their idea, then when it comes time for the idea to be tested in court, they appeal to the very circumstances they helped to engineer when convincing a judge of the validity of their argument.

I personally think it rather obvious that Moglen and Stallman in particular have adopted this strategy wrt the GPL. And I think their strategy has and will be effective. OTOH, their drive to establish and safeguard the legitimacy of copyleft cuts both ways, and GPL-wins sometimes strengthen the broad scope of copyright. (Though really what they're most concerned about is a judge disregarding copyleft license requirements in the absence of a larger change in the scope of copyrightable subject matter.)

In any event, unlike with patent law, there's no discernible shift among mainstream jurists or politicians that would see the scope of copyright diminished.

I actually chose to go to law school partly based on my frustration with the outcome of Eldred v. Ashcroft. Lessig and other lawyers in the community had made it seem like the case was a slam dunk against the Sonny Bono Copyright Extension Act. Instead he lost at the trial court, lost on appeal, lost his petition for en banc review, and lost 7-2 at the Supreme Court. Now, after having actually studied copyright law, I see that the lawyers in the open source community are somewhat radical and outside the mainstream, including Lessig, Moglen, Zittrain and others. While I would _prefer_ that their ideas won the day (I'm radically opposed to copyright and patents), I can't deny that the present state of the law is quite distant from their views.

I like to tell people to never trust a lawyer who isn't representing you, especially an academic. Sincerity often conflicts with promoting one's preferred interpretation of the law. Sincerity can quite literally sabotage your efforts.