[sf-lug] Potential GPL violation, with the potential intent to victimize our Elderly loved ones

Rick Moen rick at linuxmafia.com
Mon Nov 16 12:36:24 PST 2009

Quoting Jesse Zbikowski (embeddedlinuxguy at gmail.com):

> Here is the relevance. Copyright allows me to control distribution of
> my work, and derived works thereof. If I am interested to stop someone
> from distributing a binary module referencing my work, then the
> question of whether that module is derivative of my work is relevant
> -- because if so I can get an injunction.

I think you missed my point.  Establishing in court that a second work
is meaningful only in the context of an older work does _nothing_
towards showing copyright infringement.  Nothing at all.   You claimed
such a showing makes the second work "presumptively a deriv[ative] work".  
That is just simply not true.

> > Don't take my word for it.  Read the caselaw.  The court decisions,
> > especially those of the US Supreme Court and District Courts, are
> > surprisingly easy to read and understand.
> Last I heard there has never been a ruling on whether binary modules
> are derived works.

Again, the term is _derivative_ work.

There isn't any ruling about whether binary modules of an existing
codebase are automatically derivative works of it, and there never will
be, because anyone motivated and funded enough to hire a copyright
attorney is going to hear that that's a losing tactic, so the suit will
not be brought.

But, anyway, you seem to have gone some distance out of the way, again,
to ignore my point.  You can, and apparently should, read some of the
controlling cases that have defined within USA copyright law what is a
derivative work, and what is not.  They are quite easy to read -- and
you will observe what _actual_ conceptual tests are set up for judges to
determine that question, and what are not.

> > It would get dismissed as irrelevant to the legal issue.
> Sorry, I'm not sure I understand this sentence... are you saying the
> case against me would be dismissed because copyright does not cover
> selling modifications to a design?  Design often does involve
> copyrighted elements, If You Really Want To Get Into That.

No, that is not what I said.  

You seemed to be talking about both ideas and creative expressions.
("That is, it is not a complete expression of an idea, but a
modification or elaboration of the expressions found in the original
work.")  Copyright does not, cannot, cover ideas.

> Sorry if my example was unclear. I am interested in copyright
> protection here, not patents.

Then, you shouldn't start out talking about ideas.

> If you like, re-parse the example substituting "blueprint for a vacuum
> cleaner" instead of "design for a vacuum cleaner". I think you will
> find blueprints are covered by copyright.

A particular blueprint is eligible for copyright in recognition of the
creative content of its instantiation as a work in fixed, tangible form
(as drawn on paper).  Other people who duplicate it verbatim without
permission will be committing the tort of copyright violation. 

However, the particular way in which the kitchen is over the garage and
the back porch does double duty as a greenhouse are _ideas_.  I can
possess a lawfully purchased copy of your blueprint, and draw my own
blueprint that arranges the rooms in almost exactly the same way, and
solves the problems of heating and cooling in exactly the same way, and
will be completely innocent of copyright violation, because I have
implemented ideas rather than doing either literal or non-literal
copying of expressive elements.  To the extent that I've copied any
elements at all, they were functional rather than expressive.

Being ultra-cautious, I would rearrange the rooms just a little, just so
that no far-fetched theory of yours, that you somehow enjoyed copyright
over the creative arrangement of where the laundry room sits relative to
the master bedroom, could even in theory work.  However, because there's 
only so many ways to arrange rooms in most circumstances, and because 
the notion of such coverage would be a tough sell at all, I'd be pretty
thoroughly safe just eyeballing your blueprint and drawing pretty nearly
exactly the same design.

In any event, you seemed to be arguing, to further use your analogy,
that as designer of the blueprint for a particularly distinctive sort of
house, any compatible carport blueprints that are "merely a
modification or elaboration" of the house design, or are designed to
"plugin" to it, or are designed solely to work with it, are
automatically derivatives of the original copyrighted blueprint.  
But, no, that is not the case.

> At any rate the distinction I am trying to draw is between
> an add-on and a modification, which, according to Torvalds and others,
> has bearing on whether the work is derived -- and hence restricted in
> distribution.

For reasons cited, that is a pile of hooey.  Keep repeating it, and it
sadly still remains a pile of hooey.

> Here is a better example using a more characteristic medium for
> creative expression.  I make a movie called "Dr. Z Goes to OSCON".
> Rick watches it and says "That was OK but it needs more shots of Linus
> Torvalds in his Speedo." So he produces a "patch" or what we would
> call a "programmed re-edit", which consists of a list of timecodes
> pointing to various spots in the movie where nothing exciting is
> happening, and a set of clips to insert (which he owns) showing Linus
> in his Speedo. Again, the re-edit contains ONLY the timecodes and
> Rick's footage, NONE of the original film. Now if Rick tries to
> distribute his re-edit...

Just to clarify, what you are calling a "re-edit" is not, in fact, a
re-edit.  It's a set of instructions by which some recipient could 
produce one.

> I can say "Hey, that's a derived work, you need my permission!" 

You seem to have somehow not gotten this:  The expression in law is
"derviative", not "derived".

> And Rick can say "No, I am not distributing any elements of your film,
> just a list of timecodes (which are not expressive) and some other
> footage I own." And a judge might say "Sorry Rick, what you have
> produced is not a standalone work; it's a modification of Jesse's
> work, so he can stop you from distributing it."

The term "standalone work" is not known in copyright law.  The concept
of "modification of" is not relevant.  It's derivative works that are
the issue.  

Your theoretical does not appear to describe a derivative work.

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