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

Jesse Zbikowski embeddedlinuxguy at gmail.com
Mon Nov 16 14:58:38 PST 2009

On Mon, Nov 16, 2009 at 12:36 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Establishing in court that a second work
> is meaningful only in the context of an older work does _nothing_
> towards showing copyright infringement.

Thank you for clarifying your point.  I'd like to investigate this
further because I would imagine there are legal opinions to the
contrary.  For instance "fan fiction" is considered derivative work in
this country, trademark issues aside, even with no copying from the
original. My interpretation is that this is because it is intimately
tied to the protected work. I don't say it's GOOD that distributing
fan fiction is enjoined, but AFAIK it is.

> 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.

It would be great if you could cite a particular case; I gather from
your "Licensing and Law" page the case history is quite vast, and I'm
unlikely to finish it in time to continue this discussion.

>> > 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?

> No, that is not what I said.

Sure, please tell me when you say "It would get dismissed as
irrelevant to the legal issue" what you mean by "it" and what you mean
by "the legal issue". I was just guessing, apparently incorrectly.
Like a binary module, the sentence only makes sense in context :-)

> 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.

You're right in that we are talking about derivatives of an EXPRESSION
when we talk about derivative works. It's hard to talk about
expressions without mentioning ideas because If You Really Want To Get
Into It expressions are also ideas: there's not really a firm boundary
between them. Don't think if it's an idea, it can't also be an
expression of another idea. Quoting Judge Learned Hand in the summary
opinion of Computer Associates v. Altai: "Nobody has ever been able to
fix that boundary, and nobody ever can."


ANYWAY those aren't the waters I'm trying to muddy; we agree there is
PROTECTED EXPRESSION in software, and we are concerned with WORKS
DERIVATIVE of that expression.

> 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

Yes indeed, you can draw your own house, just as you can write your
own kernel. That's an excellent way to avoid copyright infringement.
Let's talk about the case where you don't want to do this; you want to
use MY work and publish a modification to it.

> 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.

Right indeed that's not the case... you are free to make a
loosely-coupled "add-on" to my design and say "insert this between
pages 12 and 13". You might even get away with saying "replace
everything in the middle section of page 2 with this." But if you say
"mine is just like his except the windows are slightly larger and the
door is smaller, and I use red lines for supporting walls instead of
blue" -- you run into some difficulties.

First of all how do you even make a concrete expression (blueprint in
this case) of your idea without copying from me? Yes you could publish
a high-level description like the above, but if you actually made it
into a drawing you'd have to copy.  Consider Torvalds' claim that you
can publish the SOURCE of a Linux module under any non-GPL compatible
license you want -- it's only the concrete binary instantiation that's
derivative. That's a very surprising claim to me! Most of my
motivation for engaging in this discussion is to try to understand
this claim, and I don't take for granted that the claim is true.  So
thanks for arguing this with me!

>> 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.

Interesting. If it's not a derivative work, then on what grounds can I
enjoin you from distributing it? Because I very much can under US
copyright law, by my reading. If you deny that's a derivative work, I
think your opinion is in conflict with 17 U.S.C. 110(11) as
established by the previously mentioned Family Home Movie Act of 2005.
 This grants permission to distribute content edits ONLY in the case
of removing material, and specifically "does not include the addition
of audio or video content that is performed or displayed over or in
place of existing content in a motion picture".

Now why is distributing a set of your own clips plus a timecode a
violation of my copyright? BECAUSE IT'S INTIMATELY TIED TO MY
COPYRIGHTED WORK. You claim this concept has no legal meaning; to me
this question is at the crux of whether the GPL can really legally
enforce the "share and share alike" philosophy it is aiming for.

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