Copyleft/guide Changeset - 844bf4ba5b34

Changeset - 844bf4ba5b34

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Tony Sebro (keynote2k) - 10 years ago 2014-03-19 16:17:14
tony@sfconservancy.org

Updated analysis of derivative works.

2 files changed with 32 insertions and 17 deletions:

comprehensive-gpl-guide.tex

gpl-lgpl.tex

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comprehensive-gpl-guide.tex

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@@ ... / @@ -48,6 +48,7 @@ A Comprehensive Tutorial @@
 \begin{tabbing}
 Copyright \= \copyright{} 2003, 2004, 2005, 2006 \= \hspace{.2in} Free Software Foundation, Inc. \kill
 Copyright \> \copyright{} 2014 \> \hspace{.2in} Bradley M. Kuhn. \\
 Copyright \= \copyright{} 2014 \= \hspace{.2in} Anthony K. Sebro, Jr. \\
 Copyright \> \copyright{} 2003, 2004, 2005 \> \hspace{.2in} Free Software Foundation, Inc. \\
 Copyright \> \copyright{} 2008 \> \hspace{.2in} Software Freedom Law Center. \\
 \end{tabbing}

gpl-lgpl.tex

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@@ ... / @@ -30,6 +30,7 @@ @@
 \begin{tabbing}
 Copyright \= \copyright{} 2003, 2004, 2005, 2006 \= \hspace{.2in} Free Software Foundation, Inc. \\
 Copyright \= \copyright{} 2014 \= \hspace{.2in} Bradley M. Kuhn \\
 Copyright \= \copyright{} 2014 \= \hspace{.2in} Anthony K. Sebro, Jr. \\
 \end{tabbing}
 Authors of \tutorialpartsplit{``Detailed Analysis of the GNU GPL and Related Licenses''}{this part} are: \\
@@ ... / @@ -38,6 +39,7 @@ Free Software Foundation, Inc. \\ @@
 Bradley M. Kuhn \\
 David ``Novalis'' Turner \\
 Daniel B. Ravicher \\
 Tony Sebro \\
 John Sullivan
 \vspace{.3in}
@@ ... @@
 Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Kepner-Tregoe,
 Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994); Gates
 Rubber Co. v. Bando Chem. Indust., Ltd., 9 F.3d 823 (10th Cir. 1993);
-Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); 5 Bateman
 Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); Bateman
 v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996); and, Mitek Holdings,
 Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548 (11th Cir. 1996).
@@ ... @@
 \section{No Protection for ``Methods of Operation''}
 The First Circuit expressly rejected the AFC test and, instead, takes a
 much narrower view of the meaning of derivative work for software. The
 First Circuit holds that ``method of operation,'' as used in \S~102(b) of
 The First Circuit has taken the position that the AFC test is inapplicable
 when the works in question relate to unprotectable elements set forth in
 \S 102(b).  Their approach results in a much narrower definition
 of derivative work for software in comparison to other circuits. Specifically,
 the
 First Circuit holds that ``method of operation,'' as used in \S 102(b) of
 the Copyright Act, refers to the means by which users operate
 computers. Lotus Development Corp. v. Borland Intl., Inc., 49 F.3d 807
-(1st Cir. 1995). More specifically, the court held that a menu command
+(1st Cir. 1995).  In Lotus, the court held that a menu command
 hierarchy for a computer program was uncopyrightable because it did not
 merely explain and present the programs functional capabilities to the
 user, but also served as a method by which the program was operated and
 controlled. As a result, under the First Circuits test, literal copying
 of a menu command hierarchy, or any other ``method of operation,'' cannot
 form the basis for a determination that one work is a derivative of
 another. It is also reasonable to expect that the First Circuit will read
 the unprotectable elements set forth in \S~102(b) broadly, and, as such,
 promulgate a definition of derivative work that is much narrower than that
 which exists under the AFC test.
 another.  As a result, courts in the First Circuit that apply the AFC test
 do so only after applying a broad interpretation of \S 102(b) to filter out
 unprotected elements. E.g., Real View, LLC v. 20-20 Technologies, Inc.,
 F. Supp.2d 147, 154 (D. Mass. 2010).
 \section{No Test Yet Adopted}
@@ ... @@
 to support a finding of infringement because they were too simple and
 obvious to contain any original expression.
 Perhaps not surprisingly, there have been few cases involving a highly
 In the case of Oracle America v. Google, 872 F. Supp.2d 974 (N.D. Cal. 2012),
 the Northern District of California District Court examined the question of
 whether the application program interfaces (APIs) associated with the Java
 programming language are entitled to copyright protection.  While the
 court expressly declined to rule whether all APIs are free to use without
 license (872 F. Supp.2nd 974 at 1002), the court held that the command
 structure and taxonomy of the APIs were not protectable under copyright law.
 Specifically, the court characterized the command structure and taxonomy as
 both a ``method of operation'' (using an approach not dissimilar to the
 First Circuit's analysis in Lotus) and a ``functional requirement for
 compatability'' (using Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992) and
 Sony Computer Ent. v. Connectix, 203 F.3d 596 (9th Cir. 2000) as analogies),
 and thus unprotectable subject matter under \S 102(b).
 Perhaps not surprisingly, there have been few other cases involving a highly
 detailed software derivative work analysis. Most often, cases involve
 clearer basis for decision, including frequent bad faith on the part of
 the defendant or overaggressiveness on the part of the plaintiff.
 However, no cases involving Free Software licensing have ever gone to
 court. As Free Software becomes an ever-increasingly important part of
 the economy, it remains to be seen if battle lines will be
 drawn over whether particular programs infringe the rights of Free
 Software developers or whether the entire community, including industry,
 adopts norms avoiding such risk.
 the defendant or overaggressiveness on the part of the plaintiff.
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