Date: 04 Dec 2002 13:47:13 -0800 From: swear@attbi.com (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: freebsd-chat@freebsd.org Subject: Re: Is a port skeleton considered a derivative work under the GPL? Message-ID: <35lm35xxr2.m35@localhost.localdomain> In-Reply-To: <3DED1739.6CE2E06A@mindspring.com> References: <3DE9A680.4000702@pantherdragon.org> <3DE9B0CC.8A368E61@mindspring.com> <joadjo5j7q.djo@localhost.localdomain> <3DEBDA15.6EE31FB4@mindspring.com> <z78yz73s3u.yz7@localhost.localdomain> <3DED1739.6CE2E06A@mindspring.com>
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Terry Lambert <tlambert2@mindspring.com> writes: > "Gary W. Swearingen" wrote: > > OK, but where could it be adjudicated? > > To file and not get a summary dismissal, you have to have a cause > of action in the jurisdiction in which you are filing. This means: I'll take your word for what it means and ignore the reasons or justifications for it. (It seems to me that an infringee has a cause of action in any jurisdiction willing to adjudicate the contract; ie, it's based on the near-arbritrary policies of the adjudicators, mostly for practical reasons.) But I appreciate reading your explanation of what the policies are (in the US); I didn't know. > 1) Any state in which the author of the software has a business > presence. Generally, the state of original incorporation, > but occasionally the state which the plaintiff feels would > give them the most favorable result. I guess that's why so many people can run to Mississippi to sue companies (to take advantage of their corporation-hating juries & laws). > The other issue with Open Source is that a successful project will > have authors in nearly every interesting jurisdiction. A possible > self-defense strategy for an Open Source project against a license > violation in the preparation of a derivative work might be to have > each contributin author for the infringed code (likely a subset of > the community) file in every jurisdiction they have a physical > presense in. This would require your appearance all over the country, > and be expensive for you to defend yourself against without hiring > proxies (usually lawyers) in those jurisdictions. All but a few open source licensees could be blown away by having even a SINGLE author/licensor file suit against him in a jurisdiction more than a few hundred miles away from the licensee. A lot of people have put a lot of trust in people they don't know and put themselves at risk of being sued over ambiguous license language, and of having to pay-off the licensor (in money or software licenses) in lieu of arguing about it in a far-away legal jurisdiction. Apparently, the risk of suit is quite low and the cost of settling a case is likely to be low, but there could be cases where much is at stake and the cost likely to be high; in these cases people should be very conservative in interpreting fuzzy licenses, especially in the multi-licensor case. I'm suprised that I haven't heard of any scams based on this theme. The closest I can think of are related to trademarks; eg, the original owner of the Linux trademark or the many cases of companies bullying away peoples' Internet domains because they can't afford to defend them. Of course, the FSF has sued and been payed-off (by software licenses, at least), but they have had reasonable cases, as far as I know. > The general argument you seem to be aiming at, at least with the > ports skeleton, is whether encapsulation is derivation. The answer > to that one is "No", as I've stated previously. I wasn't aiming anywhere close to the question of what is a derivation; I was just noting that derivation was not the sole key factor. And, as you noted, parts of the skeleton (certain patches and makefiles) could be considered derivative (by the licensor, at least). Thanks for http://www.pbwt.com/Attorney/files/ravicher_1.pdf reference; it was quite interesting (and only a month old). It seems that the courts are defining derivation much more narrowly for software than for novels, which you can infringe by making a movie which is even VERY loosely based on the novel. But I need to read it again a few times. To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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