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

Rick Moen rick at linuxmafia.com
Mon Jun 11 07:37:03 UTC 2012

Quoting Bruce Perens (bruce at perens.com):

> On 06/10/2012 10:49 PM, Rick Moen wrote:
> >I believe this is entirely consistent with what I said, Bruce. You
> >even said 'Read caselaw.'
> I think we need to come to grips to the fact that it may be possible
> for GPL software to be embedded within a proprietary software
> product a la NuSphere without the result being infringement.

As I said, it was the particulars of the NuSphere case that made it 
pretty clearly copyright infringement.  Defendent seems to have agreed,
judging from the hasty settlement on plaintiff's terms.  

Essentially, it comes down to creation of a new work.  The judge would
consider evidence and arguments presented about the nature of reuse, 
decide whether a new derivative work was created, and, if so, whether
it incorporated substantials expressive elements of the reused work,
then to what degree various affirmative defences apply, etc.

I look forward to reading the the Google/Oracle judge's order dismissing
claims that Google violated copyright on 37 Java API packages, having
not yet had time to do so.  I belive I heard that his holding is that 
Google wrote or commissioned independent code implementations of all 
37, leaving only the question of whether the designs and names of the
functions in the reference API packages are covered by copyright.  
He said they weren't -- which does not strike me as very surprising,
given the uncopyrightabilty of names and the idea/expression dichotomy
(patent/copyright division).   Other than giving clarification that 
claiming an API is inherently copyrightable isn't going to fly, it
doesn't seem likely to cast light on other areas of copyright law. 
In particular, it cases none on what suffices to create a new work and
what is a derivative work.

> If you go back to Progress Software (NuSphere) v. MySQL, the MySQL
> guys signed a contract with Progress without ever having it vetted
> by a lawyer. NuSphere had a reasonable assumption that they had a
> right to embed the program in their product. The MySQL guys messed
> up in a big way and were lucky to not have had to pay for it.

Naturally, one _can_ contract away the right to enforce copyright.  
But, if that is the deciding factor, then you can no longer learn
much of anything from the copyright aspects of the case.

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