[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

Rick Moen rick at linuxmafia.com
Sat Jun 9 02:46:20 UTC 2012

Quoting Chris Travers (chris at metatrontech.com):

> I don't think so.  When we look at the case where this was raised as a
> controversy (a wireless driver in Linux taken from, iirc OpenBSD), the
> allegation was actually that no derivative work was created.  The code
> was just included wholesale and the license changed.

Intended reference is to ath5k, I think?  

The truly serious and unforgivable fsck-up was that Reyk Floeter's
author credit and copyright & licence notice were omitted.  I was among
the many who flogged whoever it was -- maybe Nick Kossifidis? -- for 
doing that.

Not including Reyk Floeter's copyright notice was just flippin' rude
among other things.  But no, you are incorrect.  When the Madwifi
Project released their version as 'OpenHAL', it was substantially
patched and also, as you might imagine, rearchitected to fit into the
Madwifi driver framework.

_After_ that epic screw-up was straightened out -- Floeter's author
credit and copyright & licence notice competently included -- he no
longer had any reasonable complaint (let alone a cause of action).
However, frankly, I wish he had gone for a copyright-infringement
lawsuit over the initial misdeeds that had already occurred before that
point, just to teach the Madwifi idiots to be more polite and competent.

> True, which is why I have sought out law review articles and case law.
>  I would think that a case like MySQL v. Nusphere if it came up today
> would still be a case of first impression, would it not?  I haven't
> yet found a case directly on point (the closest maybe being Gates
> Rubber).  Maybe you have found a closer one.

Micro Star v. FormGen, CAI v. Intel, Gates Rubber.  (Don't be a painfully
literal-minded computerist and insist you can learn the key concepts of
derivative works only from software cases, please.)

>  Copyright in US law protects expressive elements to the extent that
> they are separable from functional elements.  You can't use copyright
> to protect pure function. [...]

Quite.  You know, I _have_ studied the subject.

>  The main US case of this sort that doesn't involve video games
> (excluding video games because they are protected both as software and
> as audio-visual works so that is not a clear parallel) is Gates Rubber
> v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where
> the 10th Circuit applied an abstraction/filtration/comparison test to
> determine whether one piece of software was derived from another,
> concluded the district court got things wrong and sent it back to
> district court.

The 'abstraction-filtration-comparison' three part test developed in CAI
v. Intel and further elaborated in Gates Rubber is relevant to
_non-literal_ copying of copyright-eligible elements.  NuSphere's case
is rather more brazen, and adjudication wouldn't require that conceptual
test at all.  It would not even be relevant:

NuSphere (obviously) did literal copying of the entirety of the MySQL 
engine into the body of its product, expressive elements and all.  You
deny that that creates a derivative work of MySQL?  Good luck with that.

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