Effect of the MySQL FLOSS License Exception?

[jcowan at reutershealth.com]

Rick Moen scripsit:

> I just had a bizarre mental image of someone saying "Nobody can safely
> write songs about mad dogs and Englishmen any more, because one never
> knows when the heirs of Noel Coward[1] might bring a lawsuit on a theory
> of derivative work."

In a world in which the Commissioner of Patents seriously proposes that
novel legal arguments are patentable by the lawyers who make them, nothing
is certain.

> How does a programmer _ever_ know that his work isn't a derivative work,
> but rather an "original work of authorship", thus meriting copyright
> title?  He knows it because he wrote something substantive having
> reasonably distinct existence, and documented his having done so in
> order to be able to better assert his rights later.

Only sort of.  The plaintiff in Feist v. Rural Telephone thought it
had written a copyrightable phonebook which the defendant infringed,
but it hadn't.

In fact, there are two tests that I know of for determining
derivative-work status:

1) If you never saw the original, your work can't be a derivative of it.

2) Otherwise, the abstraction-filtration-comparison test applies: we
reduce the elements of the work to their abstract forms, removing all
particulars like the names of variables; we filter out non-copyrightable
elements; and we compare.

Of course the answer is jurisdiction-dependent.

> The reason he can rest comfortably, assured of his copyright title about
> as much as one can be of anything in law, is that neither he nor other
> coders in similar circumstances have had their copyright titles denied
> by any court (over fifty-odd years of electronic computing) merely
> because they or anyone else merely combined their work with someone
> else's -- interpreted, compiled, or just sitting there.

That turns out, as Kevin Renner says, not to be the case.
Micro Star thought their work in issuing a CD full of Duke
Nukem levels didn't infringe FormGen's copyright on the
game, but they were mistaken.  See Micro Star v. FormGen,
Inc., 154 F.3d 1107 (9th Cir. 1998).  The decision is at
http://cyber.law.harvard.edu/openlaw/DVD/cases/Micro_Star_v_Formgen.html
and is very much worth reading: it contained several eye-openers for me.

> Either what you, the concerned programmer, wrote was an
> "original work of authorship" (in which case you own copyright), or it
> wasn't (in which case you have no property interest).

Well, yes, you do own the copyright in a derivative work (an important point),
but you can't do things that derogate from the original author's rights.
In particular, you have to be using the original work under license, and you
have to obey the restrictions of that license.

-- 
I don't know half of you half as well           John Cowan
as I should like, and I like less than half     jcowan at reutershealth.com
of you half as well as you deserve.             http://www.ccil.org/~cowan
        --Bilbo                                 http://www.reutershealth.com
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