Bye - Bye , open source derivative works litigation

[RJack]

"Posted On: September 7, 2009 by David Johnson
Good Copyright Registration "Hygiene" Necessary to Obtain Copyright
Protection over Revised Versions of Software"
http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html

The case was SimplexGrinnell LP v. Integrated Systems & Power, Inc.,
U.S.D.C., Southern District of New York, Case No. 07Civ2700. The
plaintiff, Simplex, makes fire alarm and sprinkler equipment. The
defendant, ISPI, was an installer of Simplex's equipment in the New York
and New Jersey areas and was granted, as part of a bankruptcy court
order, a license to use Simplex's programming software to service
Simplex alarm systems for ISPI's existing customers. However, ISPI began
using Simplex's software to service new customers, as well. Simplex sued
for copyright infringement, seeking to block ISPI from using its
software to service new customers...

Copyright law classifies works as "original" and "derivative" works. A
"derivative" work is a work that is based on "one or more preexisting
works." 17 U.S.C. § 101. To be fully protected, derivative works must be
copyrighted separately from the original works on which they are based.
In an attempt to circumvent the Court's ruling, Simplex argued that the
changes it had made in the software between the serial editions of each
revision were trivial, so the different editions within each revision
did not qualify as "derivative" works and did not require separate
copyright registration. Under Simplex's theory, because each version of
the software was not a derivative work, it registration of one of the
versions within each "revision" should be sufficient to confer subject
matter jurisdiction over the entire revision.

However, the Court found that the evidence at trial simply did not
support the claim that the changes made in the serial editions of each
revision were trivial. Second Circuit case law establishes that only a
minimal degree of changes must be made for a work to be considered
derivative. See Merkos L'Inyonei Chinuch, Inc. v. Ostar Sifrea
Lubavitch, Inc., 312 F.3d 94, 97 (2nd Cir. 2002) (to be considered
original, a work must be independently created by the author and possess
"at least some minimal degree of creativity."). Here, the evidence
showed that there were numerous changes between different versions: For
example between versions 10.01.01 and 10.50, an additional audio
programming feature was added and 275 defects were repaired."


Anybody still think SFLC litigation over busybox-0.60.3 (27-Apr-2002
735K) still has legs? ROFL

"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
"Posted On: September 7, 2009 by David Johnson
Good Copyright Registration "Hygiene" Necessary to Obtain Copyright
Protection over Revised Versions of Software"
http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html

<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
Settlement disagreement leads to copyright ... claims
...
The court found that SG was entitled to an injunction against
copyright infringement. ... The injunction, however, would only
extend to the particular versions of the programs over which the
court had proper subject matter jurisdiction. The Second Circuit
doesn’t allow the kind of general prophylactic injunction that
other circuits do. (Query whether this rule will fall along with
the Second Circuit’s ruling rejecting the Tasini settlement, when
the Supreme Court does reverse.) SG’s remedy for other
infringements is to register the other versions.

Notice that last sentence. As usual, the links posted by the cranks
demonstrate against their theories.

[RJack]

Post by Hyman Rosen

"Posted On: September 7, 2009 by David Johnson Good Copyright
Registration "Hygiene" Necessary to Obtain Copyright Protection
over Revised Versions of Software"
http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html

<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
Settlement disagreement leads to copyright ... claims ... The court
found that SG was entitled to an injunction against copyright
infringement. ... The injunction, however, would only extend to the
particular versions of the programs over which the court had proper
subject matter jurisdiction. The Second Circuit doesn’t allow the
kind of general prophylactic injunction that other circuits do.
(Query whether this rule will fall along with the Second Circuit’s
ruling rejecting the Tasini settlement, when the Supreme Court does
reverse.) SG’s remedy for other infringements is to register the
other versions.
Notice that last sentence. As usual, the links posted by the cranks
demonstrate against their theories.

Three things Hyman.

1) The link:
<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
isn't my link
<http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html>

2) Did you notice the future tense in your cite, "... when the Supreme
Court does reverse" ? You got a direct line to Antonin Scalia?
"Assume" will make an *ASS* out of *U* and ME*.

3) The NEW YORK TIMES CO. V. TASINI, 533 U.S. 483 (2001) decision
concerned *distribution* of established collective works -- not
registration of ongoing derivative works.

So please explain Hyman, WTF are talking about?

"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by Hyman Rosen
<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
isn't my link
<http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html>

But they are discussing the same case.

Post by Hyman Rosen
2) Did you notice the future tense in your cite, "... when the Supreme
Court does reverse" ?

Yes. That refers to "The Second Circuit doesn’t allow the kind of
general prophylactic injunction that other circuits do." It does
not refer to "SG’s remedy for other infringements is to register
the other versions."

Post by Hyman Rosen
3) The NEW YORK TIMES CO. V. TASINI, 533 U.S. 483 (2001) decision
concerned *distribution* of established collective works -- not
registration of ongoing derivative works.

Again, that does not refer to "SG’s remedy for other infringements
is to register the other versions."

Post by Hyman Rosen
So please explain Hyman, WTF are talking about?

As my cite states, the court found that SG was entitled to an
injunction against copyright infringement for those versions
of its work that it had registered. If it wanted injunctions
for infringement against the other versions, it could get those
by first registering those versions and then filing a claim.

This applies tp GPLed programs in the same way. Even if a court
chooses to enjoin only registered versions of GPLed programs
from being copied and distributed unless the GPL is honored, the
remedy for a copyright holder is simply to register the version
so being copied and distributed and then file for injunction.

[RJack]

Post by Hyman Rosen

Post by Hyman Rosen
<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
isn't my link
<http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html>

But they are discussing the same case.

Post by Hyman Rosen
2) Did you notice the future tense in your cite, "... when the
Supreme Court does reverse" ?

Yes. That refers to "The Second Circuit doesn’t allow the kind of
general prophylactic injunction that other circuits do." It does not
refer to "SG’s remedy for other infringements is to register the
other versions."

Post by Hyman Rosen
3) The NEW YORK TIMES CO. V. TASINI, 533 U.S. 483 (2001) decision
concerned *distribution* of established collective works -- not
registration of ongoing derivative works.

Again, that does not refer to "SG’s remedy for other infringements is
to register the other versions."

Post by Hyman Rosen
So please explain Hyman, WTF are talking about?

As my cite states, the court found that SG was entitled to an
injunction against copyright infringement for those versions of its
work that it had registered. If it wanted injunctions for
infringement against the other versions, it could get those by first
registering those versions and then filing a claim.

WTF does that have to do with the Supreme Court and NEW YORK TIMES CO.
V. TASINI. TASANI didn't address blanket injunctions concerning
copyright registration in derivative works.

Post by Hyman Rosen
This applies tp GPLed programs in the same way.

Says who? POTUS or Moglen?

Post by Hyman Rosen
Even if a court chooses to enjoin only registered versions of GPLed
programs from being copied and distributed unless the GPL is honored,
the remedy for a copyright holder is simply to register the version
so being copied and distributed and then file for injunction.

A court will NEVER, NEVER choose to enjoin a GPL program. A federal
judge will NEVER, NEVER get a chance to read the GPL if the SFLC has
anything to do with it. Automatic voluntary dismissals are neat aren't
they Hyman?

"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
WTF does that have to do with the Supreme Court and NEW YORK TIMES CO.
V. TASINI. TASANI didn't address blanket injunctions concerning
copyright registration in derivative works.

You would have to ask the author of the citation. It sounds to me
that she believes that Tasini will be overturned and this will then
cause the Second Circuit to allow the same prophylactic injunctions
that other circuits do. I simply quoted an entire paragraph, and the
Tasini reference was part of it.

Post by RJack

Post by Hyman Rosen
This applies tp GPLed programs in the same way.

Says who? POTUS or Moglen?

I do, reasoning by analogy since the cases seem obviously the same.
The court said that if you want an injunction against infringement,
go register the work, then come and ask for the injunction.

Post by RJack
A court will NEVER, NEVER choose to enjoin a GPL program. A federal
judge will NEVER, NEVER get a chance to read the GPL if the SFLC has
anything to do with it. Automatic voluntary dismissals are neat aren't
they Hyman?

The dismissals are not "automatic", they are a result of the
parties settling and the defendants agreeing to comply with
the GPL. The "neat" part is gaining compliance with the GPL,
which every single defendant has agreed to.

[Alexander Terekhov]

You don't understand, Hyman.

The idea is that by doing a few modifying and copyrightable changes into
a "single program" in response to the GPL offer one becomes a joint
copyright owner of the entire work "as a whole" and can rightfully
license that entire work (with 'as a whole' as 'defined' and intended by
the GPL) in disrespect of the GPL. It's jujitsu against jujitsu, if you
like. Copyleft against copyright? The copyright can fire back in jujitsu
mode much better!

Got it now, Hyman?

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
You don't understand, Hyman.

No, you don't understand.

Post by Alexander Terekhov
The idea is that by doing a few modifying and copyrightable changes into
a "single program" in response to the GPL offer one becomes a joint
copyright owner of the entire work "as a whole" and can rightfully
license that entire work (with 'as a whole' as 'defined' and intended by
the GPL) in disrespect of the GPL.

No, that's completely wrong: <http://www.bitlaw.com/copyright/ownership.html>
A joint work is defined by the Copyright Act as:
a work prepared by two or more authors with the
intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole.

A second author cannot hijack someone else's work to become a
joint author - joint authorship has to be consented to by every
author of the work, including the first. Rather, the first
author has authorized the preparation of derivative works only
under the GPL, and any secondary author who makes changes and
copies and distributes the resulting work other than under the
GPL is simply infringing copyright.

[chrisv]

Post by Hyman Rosen

Post by Alexander Terekhov
The idea is that by doing a few modifying and copyrightable changes into
a "single program" in response to the GPL offer one becomes a joint
copyright owner of the entire work "as a whole" and can rightfully
license that entire work (with 'as a whole' as 'defined' and intended by
the GPL) in disrespect of the GPL.

Good gravy, what a ludicrous claim. You are a fscking idiot.

Post by Hyman Rosen
No, that's completely wrong: <http://www.bitlaw.com/copyright/ownership.html>
a work prepared by two or more authors with the
intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole.
A second author cannot hijack someone else's work to become a
joint author - joint authorship has to be consented to by every
author of the work, including the first. Rather, the first
author has authorized the preparation of derivative works only
under the GPL, and any secondary author who makes changes and
copies and distributes the resulting work other than under the
GPL is simply infringing copyright.

[Alexander Terekhov]

Post by chrisv

Post by Alexander Terekhov
The idea is that by doing a few modifying and copyrightable changes into
a "single program" in response to the GPL offer one becomes a joint
copyright owner of the entire work "as a whole" and can rightfully
license that entire work (with 'as a whole' as 'defined' and intended by
the GPL) in disrespect of the GPL.

Good gravy, what a ludicrous claim. You are a fscking idiot.

"Fsck you arsehole troll."

http://linuxidiots.blogspot.com/2007/09/chrisv-liar.html

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[RJack]

Post by Alexander Terekhov
You don't understand, Hyman.
The idea is that by doing a few modifying and copyrightable changes into
a "single program" in response to the GPL offer one becomes a joint
copyright owner of the entire work "as a whole" and can rightfully
license that entire work (with 'as a whole' as 'defined' and intended by
the GPL) in disrespect of the GPL. It's jujitsu against jujitsu, if you
like. Copyleft against copyright? The copyright can fire back in jujitsu
mode much better!

"17 USC Sec. 101 -- A “joint work” is a work prepared by two or more
authors with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole."

Every developer who contributes source code to the Linux kernel
unquestionably does so with the the intention that his source code
become an "interdependent part" of the Linux kernel "as a whole" (dak or
hyman might argue that the contributions are offered so they won't work
with the rest of the kernel code but that's a minority veiw). Any
developer whose code appears in the Linux kernel is obviously a joint
owner. Ahh... a thousand joint owners of the Linux kernel -- I'll bet
Linus loves that fact.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
"17 USC Sec. 101 -- A “joint work” is a work prepared by two or more
authors with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole."

Precisely. In order for a many-authored GPLed work to be a joint work,
you would need to demonstrate that each author has so intended, and has
intended to give all the co-authors equal rights to the work. You would
fail, since each author has dictated the terms under which others may
make derivative works or copy and distribute the work, namely the GPL.

[Alexander Terekhov]

Take your meds, Hyman.

Hyman Rosen wrote:
[...]

Post by Hyman Rosen
Precisely. In order for a many-authored GPLed work to be a joint work,
you would need to demonstrate that each author has so intended, and has
intended to give all the co-authors equal rights to the work.

Heck, are you seriously suggesting that the GPL doesn't intend to
"protect" user's rights indended to be equal to the developers rights
and that co-author's developer rights under the GPL are not equal rights
to the other co-author(s), YOU MORON HYMAN?

Please elaborate. TIA!!!

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
Heck, are you seriously suggesting that the GPL doesn't intend to
"protect" user's rights indended to be equal to the developers rights
and that co-author's developer rights under the GPL are not equal rights
to the other co-author(s)

People who release code under the GPL grant others the
right to create derivative works and copy and distribute
those works provided that they are distributed under the
GPL. There is no basis for claiming that a person
releasing code under the GPL is volunteering to give
downstream authors joint copyright in the original work.
Indeed, the GPL, as a copyright license, enumerates the
only ways that another author may prepare and copy and
distribute derivative works outside of what copyright
law alone would permit, and since the GPL does not grant
such other authors joint copyright, they do not have it.

[Alexander Terekhov]

Hyman Rosen wrote:
[...]

Post by Hyman Rosen
law alone would permit, and since the GPL does not grant
such other authors joint copyright, they do not have it.

LMAO! Don't you think that the GPL is not the state and as such it just
can't grant any copyright irrespective of jointness under 17 USC 101,
YOU MORON HYMAN?

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
LMAO! Don't you think that the GPL is not the state and as such it just
can't grant any copyright irrespective of jointness under 17 USC 101

Joint authorship exists only when all authors intend
that it should.
<http://www.copyright.gov/title17/92chap1.html#101>
A “joint work” is a work prepared by two or more authors
with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole.

In the case of a GPLed work, all authors are releasing their
work under a specific license. If those authors intended to
create a joint work, the license would say so. But it does not.

[Alexander Terekhov]

Post by Alexander Terekhov
LMAO! Don't you think that the GPL is not the state and as such it just
can't grant any copyright irrespective of jointness under 17 USC 101

In the case of a GPLed work . . .

One *SINGLE* (consisting of a separate unique whole) project is not a
joint work although it produces a (single) (combined) "larger
program"???

"If the program dynamically links plug-ins, and they make function calls
to each other and share data structures, we believe they form a single
program, which must be treated as an extension of both the main program
and the plug-ins. "

"But if the semantics of the communication are intimate enough,
exchanging complex internal data structures, that too could be a basis
to consider the two parts as combined into a larger program. "

http://www.gnu.org/licenses/gpl-faq.html

(The static linking "whole" aside for a moment, that is.)

Please elaborate, Hyman.

TIA!!!

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
One *SINGLE* (consisting of a separate unique whole) project is not a
joint work although it produces a (single) (combined) "larger program"???

Correct. A joint work is created only when all of its
authors agree and intend to do so. Otherwise, as each
author makes revisions, he creates a derivative work
(doing so without infringement only with permission of
all the rights holders).

Post by Alexander Terekhov
"If the program dynamically links plug-ins, and they make function calls
to each other and share data structures, we believe they form a single
program, which must be treated as an extension of both the main program
and the plug-ins. "
"But if the semantics of the communication are intimate enough,
exchanging complex internal data structures, that too could be a basis
to consider the two parts as combined into a larger program. "
http://www.gnu.org/licenses/gpl-faq.html
(The static linking "whole" aside for a moment, that is.)
Please elaborate, Hyman.

As we know from both your opinions and the FSF's opinions, just
because someone thinks something is true doesn't make it true.
You both say things that you would like others to believe in
order to get them to behave in certain ways.

In any case, the actions of a single author cannot cause a work
to become a joint work because a joint work can only be created
through the intentions of all of its authors.

[Alexander Terekhov]

Post by Hyman Rosen

Post by Alexander Terekhov
One *SINGLE* (consisting of a separate unique whole) project is not a
joint work although it produces a (single) (combined) "larger program"???

Correct. A joint work is created only when all of its

Why didn't Erik Andersen fork the busybox to create his own non-joint
version of busybox?

Post by Hyman Rosen
authors agree and intend to do so.

They "agree and intend to do so" by posting contributions to joint work
projects like busybox you retard Hyman.

"Some aspects of the statutory definition of joint authorship are fairly
straightforward. Parts of a unitary whole are "inseparable" when they
have little or no independent meaning standing alone. That would often
be true of a work of written text, such as the play that is the subject
of the pending litigation. By contrast, parts of a unitary whole are
"interdependent" when they have some meaning standing alone but achieve
their primary significance because of their combined effect, as in the
case of the words and music of a song. Indeed, a novel and a song are
among the examples offered by the legislative committee reports on the
1976 Copyright Act to illustrate the difference between "inseparable"
and "interdependent" parts. See H.R.Rep. No. 1476, 94th Cong., 2d Sess.
120 (1976) ("House Report "), reprinted in 1976 U.S.C.C.A.N. 5659, 5736;
S.Rep. No. 473, 94th Cong., 2d Sess. 103-04 (1975) ("Senate Report ").3

The legislative history also clarifies other aspects of the statutory
definition, but leaves some matters in doubt. Endeavoring to flesh out
the definition, the committee reports state:

[A] work is "joint" if the authors collaborated with each other, or if
each of the authors prepared his or her contribution with the knowledge
and intention that it would be merged with the contributions of other
authors as "inseparable or interdependent parts of a unitary whole." The
touchstone here is the intention, at the time the writing is done, that
the parts be absorbed or combined into an integrated unit....

House Report at 120; Senate Report at 103 (emphasis added). This passage
appears to state two alternative criteria--one focusing on the act of
collaboration and the other on the parties' intent. However, it is hard
to imagine activity that would constitute meaningful "collaboration"
unaccompanied by the requisite intent on the part of both participants
that their contributions be merged into a unitary whole, and the case
law has read the statutory language literally so that the intent
requirement applies to all works of joint authorship. See, e.g.,
Weissmann v. Freeman, 868 F.2d 1313, 1317-19 (2d Cir.1989); Eckert v.
Hurley Chicago Co., Inc., 638 F.Supp. 699, 702-03 (N.D.Ill.1986).

[...]

In this case, appellant contends that Judge Haight's observation that
"Childress never shared Taylor's notion that they were co-authors of the
play" misapplies the statutory standard by focusing on whether Childress
"intended the legal consequences which flowed from her prior acts."
Brief for Appellant at 22. We do not think Judge Haight went so far. He
did not inquire whether Childress intended that she and Taylor would
hold equal undivided interests in the play. But he properly insisted
that they entertain in their minds the concept of joint authorship,
whether or not they understood precisely the legal consequences of that
relationship. Though joint authorship does not require an understanding
by the co-authors of the legal consequences of their relationship,
obviously some distinguishing characteristic of the relationship must be
understood in order for it to be the subject of their intent. In many
instances, a useful test will be whether, in the absence of contractual
agreements concerning listed authorship, each participant intended that
all would be identified as co-authors. Though "billing" or "credit" is
not decisive in all cases and joint authorship can exist without any
explicit discussion of this topic by the parties,7 consideration of the
topic helpfully serves to focus the fact-finder's attention on how the
parties implicitly regarded their undertaking. "

http://openjurist.org/945/f2d/500

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
Why didn't Erik Andersen fork the busybox to create his
own non-joint version of busybox?

As far as I understand, he made changes to BusyBox to
produce a new version. "Fork" would imply that he was
making a version separate from one undergoing development
by someone else. I do not know the history of BusyBox well
enough to say if this was the case, but I would suspect
that it wasn't.

There is no joint copyright version of BusyBox, so asking
why he did not create his own non-joint version makes an
untrue implication.

Post by Alexander Terekhov
They "agree and intend to do so" by posting contributions
to joint work projects like busybox

They do not. They post contributions to GPL-licensed
programs, and the GPL is the only documentation of
their intent. If the GPL intended to create a joint
work it would say so, and since it does not, no joint
work is created. Indeed, since the GPL spells out that
GPLed work may be distributed only under the GPL, while
joint authorship would allow later authors to distribute
the work otherwise, it is clear that the GPL intends not
to create a joint work.

[Alexander Terekhov]

Hyman Rosen wrote:
[...]

Post by Hyman Rosen
They do not. They post contributions to GPL-licensed
programs, and the GPL is the only documentation of
their intent. If the GPL intended to create a joint
work it would say so, and since it does not, no joint

Uh retard Hyman.

A joint work can be created without any license at all. The GPL doesn't
have to say anything about joint works (just like in the case of no
license at all) for a joint work created that is available to
non-coauthors under the GPL. Coauthors don't need any non-exclusive
license -- they have exclusive ownership!!!

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is
that the license states the terms.

Post by Alexander Terekhov
The GPL doesn't have to say anything about joint works
(just like in the case of no license at all) for a joint
work created that is available to non-coauthors under the
GPL. Coauthors don't need any non-exclusive license --
they have exclusive ownership!!!

They cannot be co-authors except as they accept the GPL,
because they otherwise have no permission to create a
derivative work from GPL-licensed code.

[Snit]

Post by Hyman Rosen

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is
that the license states the terms.

Post by Alexander Terekhov
The GPL doesn't have to say anything about joint works
(just like in the case of no license at all) for a joint
work created that is available to non-coauthors under the
GPL. Coauthors don't need any non-exclusive license --
they have exclusive ownership!!!

They cannot be co-authors except as they accept the GPL,
because they otherwise have no permission to create a
derivative work from GPL-licensed code.

Their freedom is limited.

[Hyman Rosen]

Post by Snit
Their freedom is limited.

Yes. The FSF wishes users of computer programs to have the
ability to run, read, modify, and share them. Therefore
they urge that code be licensed under the GPL. They do not
mind if in the process of ensuring this, developers are in
some way disadvantaged from what they might be able to do
were the code public-domain or otherwise licensed. The FSF
does not care about freedom for developers.

[Alexander Terekhov]

Post by Snit

Post by Hyman Rosen

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is
that the license states the terms.

Post by Alexander Terekhov
The GPL doesn't have to say anything about joint works
(just like in the case of no license at all) for a joint
work created that is available to non-coauthors under the
GPL. Coauthors don't need any non-exclusive license --
they have exclusive ownership!!!

They cannot be co-authors except as they accept the GPL,
because they otherwise have no permission to create a
derivative work from GPL-licensed code.

Their freedom is limited.

The GPL seeks to deny creators of contributions forming derivative work
their copyright ownership in the sense that contributors are purportedly
impeded to license their copyright as they see fit and should use the
GPL and only the GPL instead.

http://www.gnu.org/philosophy/words-to-avoid.html

"“Creator”

The term “creator” as applied to authors implicitly compares them to a
deity (“the creator”). The term is used by publishers to elevate
authors' moral standing above that of ordinary people in order to
justify giving them increased copyright power, which the publishers can
then exercise in their name. We recommend saying “author” instead.
However, in many cases “copyright holder” is what you really mean."

But who said that such pinky-anarchy-commie intent will be enforced in a
capitalist legal system court?

Only utter morons could seriously believe in that.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
The GPL seeks to deny creators of contributions forming derivative work
their copyright ownership in the sense that contributors are purportedly
impeded to license their copyright as they see fit and should use the
GPL and only the GPL instead.

This is generally correct. Since those creators of derivative
works do not have the right to create them without permission
of the rights holders, caviling at the restrictions is pointless.
The restrictions are known, and if they are not acceptable to the
author who wishes to create a derivative work, then he should not
create that work.

Post by Alexander Terekhov
But who said that such intent will be enforced in a
capitalist legal system court?

It is copyright law which is being enforced.

[chrisv]

Post by Hyman Rosen

Post by Alexander Terekhov
The GPL seeks to deny creators of contributions forming derivative work
their copyright ownership in the sense that contributors are purportedly
impeded to license their copyright as they see fit and should use the
GPL and only the GPL instead.

This is generally correct. Since those creators of derivative
works do not have the right to create them without permission
of the rights holders, caviling at the restrictions is pointless.
The restrictions are known, and if they are not acceptable to the
author who wishes to create a derivative work, then he should not
create that work.

Man, you have the patience of a saint, dealing with these
mental-midget trolling assholes "Alexander Terekhov" and "RJack".

The "Alexander" POS actually claims that someone becomes a co-author
of something when they "agree and intend to do so", without needing
the agreement of the original author(s) - that they then obtain
legal/copyright authority over the entire work, equal to the original
author(s), in spite of the original aouthor(s) wishes and the fact
that the original work is copyrighted and released under the GPL.

I wonder how the fsckwit "Alexander" would feel if I claimed
co-ownership of his house, because I "agree and intend to do so" and
"contribute" by planting a tree in the yard, regardless of what he
wants. Maybe I should then be able to sell, or give, rights to the
house to Microsoft! Fsck the rights of the originator!

Sheesh!

I mean, what the HELL is so hard about the GPL and the concept of "if
you don't like the terms, DON'T USE THE CODE".

[Hyman Rosen]

Post by chrisv
Man, you have the patience of a saint

It's not precisely patience. As I have said before, I find
these exchanges entertaining. It's rather sad, actually :-)

More seriously, it's also educational to a get a layman's
glimpse of what it must be like being a lawyer involved in
litigation - tracking down cases that support your claim
and tear down the opposition, reading documents closely,
and finding flaws in arguments.

[RJack]

Post by chrisv

Post by Alexander Terekhov
The GPL seeks to deny creators of contributions forming
derivative work their copyright ownership in the sense that
contributors are purportedly impeded to license their copyright
as they see fit and should use the GPL and only the GPL instead.

This is generally correct. Since those creators of derivative works
do not have the right to create them without permission of the
rights holders, caviling at the restrictions is pointless. The
restrictions are known, and if they are not acceptable to the
author who wishes to create a derivative work, then he should not
create that work.

Man, you have the patience of a saint, dealing with these
mental-midget trolling assholes "Alexander Terekhov" and "RJack".
The "Alexander" POS actually claims that someone becomes a co-author
of something when they "agree and intend to do so", without needing
the agreement of the original author(s)

If the "original authors" accept a developer's code to be integrated
into the BusyBox project they show their intent to include that new
contributor as a joint author. This acceptance is an *affirmative act*
by the original developers. See the BusyBox site
http://busybox.net/developer.html and "Contributing":

"If you're approved for an account, you'll need to send an email from
your preferred contact email address with the username you'd like to use
when committing changes to GIT, and attach a public ssh key to access
your account with."

It is these actions under "Contributing" that make BusyBox a jointly
owned work and has nothing to do with intent of the GPL.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
If the "original authors" accept a developer's code to be integrated
into the BusyBox project they show their intent to include that new
contributor as a joint author.

No, that's completely wrong. The new developers prepare
work distributed under the GPL, distribute it to the
original developers, and those developers prepare a
derivative work based on the original program and the
new piece, and distribute that under the GPL. No one
is creating a joint work.

[RJack]

Post by RJack
If the "original authors" accept a developer's code to be
integrated into the BusyBox project they show their intent to
include that new contributor as a joint author.

No, that's completely wrong. The new developers prepare work
distributed under the GPL, distribute it to the original developers,
and those developers prepare a derivative work based on the original
program and the new piece, and distribute that under the GPL. No one
is creating a joint work.

That reply was lame Hyman... really lame. I expected better from you.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[amicus_curious]

Post by Hyman Rosen

Post by RJack
If the "original authors" accept a developer's code to be integrated
into the BusyBox project they show their intent to include that new
contributor as a joint author.

No, that's completely wrong. The new developers prepare
work distributed under the GPL, distribute it to the
original developers, and those developers prepare a
derivative work based on the original program and the
new piece, and distribute that under the GPL. No one
is creating a joint work.

So taking someone else's work and republishing it as a whole is not joint
authorship? You are in an untenable position to be sure!

[Hyman Rosen]

Post by amicus_curious
So taking someone else's work and republishing it as a whole is not
joint authorship? You are in an untenable position to be sure!

A joint work is created through the intention of all
authors to form it. Without such intention, the work
is not joint, it is collective, with copyright on
each component owned by the author of the component,
and copyright on the arrangement owned by the arrangers.
For modifications made to existing components or their
arrangement, copyright is owned by the original author
and as well by the author making the change, as a
derivative work.

In fact, the concepts of derivative work and joint work
are in certain ways opposite. A joint work is created
through intention of co-authors, and each author has full
rights to the work, while a derivative work is created with
permission from the original author and then copyright in
the result is held by both authors, and that work can be
copied and distributed only with permission of both authors.

The GPL speaks of modifications as derivative works. In no
way does it speak of joint works, and therefore authors who
use it as the license for code they produce have indicated
that they are not creating a joint work.

[RJack]

Post by amicus_curious
So taking someone else's work and republishing it as a whole is not
joint authorship? You are in an untenable position to be sure!

A joint work is created through the intention of all authors to form
it. Without such intention, the work is not joint, it is collective,
with copyright on each component owned by the author of the
component, and copyright on the arrangement owned by the arrangers.
For modifications made to existing components or their arrangement,
copyright is owned by the original author and as well by the author
making the change, as a derivative work.
In fact, the concepts of derivative work and joint work are in
certain ways opposite. A joint work is created through intention of
co-authors, and each author has full rights to the work, while a
derivative work is created with permission from the original author
and then copyright in the result is held by both authors, and that
work can be copied and distributed only with permission of both
authors.
The GPL speaks of modifications as derivative works. In no way does
it speak of joint works, and therefore authors who use it as the
license for code they produce have indicated that they are not
creating a joint work.

The procdures for acceptance and approval at the BusyBox development site:
http://busybox.net/developer.html

determine how the contributing authors works are jointly committed to
the single program called BusyBox. The GPL has nothing to do with it.
The joint authors may license their code under any license they wish but
that fact doesn't prevent the formation of a joint work.

The joint work may be released under the GPL to the public but that fact
does not change the reality that the GPL is unenforceable as a contract
and is preeempted by 17 USC 301(a).

Sincerely,
RJack

[Hyman Rosen]

Post by RJack
http://busybox.net/developer.html
determine how the contributing authors works are jointly committed to
the single program called BusyBox. The GPL has nothing to do with it.
The joint authors may license their code under any license they wish but
that fact doesn't prevent the formation of a joint work.

In order for BusyBox to be a joint work, every one of its authors
must intend, or have intended, for it to be a joint work. Absent
proof of such intention, it is not a joint work but a collective
work, with derivative works generated by each change. As we see in
<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
"Each new version ... is a separate derivative work"
software development spins off endless numbers of such derivative
works during the course of development, no matter how minor the
changes.

Post by RJack
The joint work may be released under the GPL to the public

It is not a joint work.

Post by RJack
but that fact does not change the reality that the GPL is
unenforceable as a contract

It is not a contract but a license, and it is enforceable only
to the extent that someone is agreeing to be bound by it. If they
do not wish to be bound by it, they need not be, but then they
have no other permission to copy and distribute the GPLed work.

Post by RJack
and is preeempted by 17 USC 301(a)

Preemption of copyright issues by federal law is completely
irrelevant with respect to the GPL, which is a copyright
license and grants extra permission beyond what unadorned
copyright law allows, consistent with the rights of copyright
holders to grant such permission as defined by 17 USC 106.
<http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106----000-.html>

[JEDIDIAH]

Post by Alexander Terekhov

Post by Snit

Post by Hyman Rosen

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is
that the license states the terms.

Post by Alexander Terekhov
The GPL doesn't have to say anything about joint works
(just like in the case of no license at all) for a joint
work created that is available to non-coauthors under the
GPL. Coauthors don't need any non-exclusive license --
they have exclusive ownership!!!

They cannot be co-authors except as they accept the GPL,
because they otherwise have no permission to create a
derivative work from GPL-licensed code.

Their freedom is limited.

The GPL seeks to deny creators of contributions forming derivative work
their copyright ownership in the sense that contributors are purportedly

There is no "ownership" in derivative works.

[deletia]

Derivative works are the exclusive monopoly of the author of the original
work you're trying to mooch off of. The GPL isn't creating any "restrictive
condition" that doesn't already exist in it's absence.

[Alexander Terekhov]

JEDIDIAH The Silly wrote:
[...]

Post by JEDIDIAH
There is no "ownership" in derivative works.

Really? Take your meds, JEDIDIAH.

Copyright in derivative works is owned just like copyright in
non-derivative works.

Post by JEDIDIAH
[deletia]
Derivative works are the exclusive monopoly of the author of the original
work you're trying to mooch off of. The GPL isn't creating any "restrictive

CREATION of derivative work is the exclusive monopoly of the author of
the original work meaning that unauthorized derivative work could not be
copyrighted at all. The copyright in the authorized derivative work is
entirely separate from the copyright in preexisting material the
derivative work is based on, silly.

See

http://www.law.cornell.edu/uscode/17/usc_sec_17_00000103----000-.html

and


----
HOUSE REPORT NO. 94-1476

Section 103 complements section 102: A compilation or derivative
work is copyrightable if it represents an ''original work of
authorship'' and falls within one or more of the categories listed
in section 102. Read together, the two sections make plain that
the criteria of copyrightable subject matter stated in section 102
apply with full force to works that are entirely original and to
those containing preexisting material. Section 103(b) is also
intended to define, more sharply and clearly than does section 7
of the present law (section 7 of former title 17), the important
interrelationship and correlation between protection of preexisting
and of ''new'' material in a particular work. The most important
point here is one that is commonly misunderstood today: copyright
in a ''new version'' covers only the material added by the later
author, and has no effect one way or the other on the copyright or
public domain status of the preexisting material.

Between them the terms ''compilations'' and ''derivative works''
which are defined in section 101 comprehend every copyrightable
work that employs preexisting material or data of any kind. There
is necessarily some overlapping between the two, but they basically
represent different concepts. A ''compilation'' results from a
process of selecting, bringing together, organizing, and arranging
previously existing material of all kinds, regardless of whether
the individual items in the material have been or ever could have
been subject to copyright. A ''derivative work,'' on the other
hand, requires a process of recasting, transforming, or adapting
''one or more preexisting works''; the ''preexisting work'' must
come within the general subject matter of copyright set forth in
section 102, regardless of whether it is or was ever copyrighted.

The second part of the sentence that makes up section 103(a)
deals with the status of a compilation or derivative work
unlawfully employing preexisting copyrighted material. In
providing that protection does not extend to ''any part of the
work in which such material has been used unlawfully,'' the bill
prevents an infringer from benefiting, through copyright
protection, from committing an unlawful act, but preserves
protection for those parts of the work that do not employ the
preexisting work. Thus, an unauthorized translation of a novel
could not be copyrighted at all, but the owner of copyright in
an anthology of poetry could sue someone who infringed the whole
anthology, even though the infringer proves that publication of
one of the poems was unauthorized.
----

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[JEDIDIAH]

Post by Alexander Terekhov
[...]

Post by JEDIDIAH
There is no "ownership" in derivative works.

Really? Take your meds, JEDIDIAH.
Copyright in derivative works is owned just like copyright in
non-derivative works.

Yup, by the "original owner".

That's part of what's included in "all rights reserved".

[deletia]

[RJack]

Post by JEDIDIAH

JEDIDIAH The Silly wrote: [...]

Post by JEDIDIAH
There is no "ownership" in derivative works.

Really? Take your meds, JEDIDIAH.
Copyright in derivative works is owned just like copyright in
non-derivative works.

Yup, by the "original owner".
That's part of what's included in "all rights reserved".

WOW! I didn't know you could alter or nullify parts of the
Copyright Act by simply adding the words "all rights reserved"
to your license! What a powerful concept.

Sincerely,
RJack :)

[Alexander Terekhov]

Post by Hyman Rosen

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is
that the license states the terms.

Take your meds Hyman. The GPL states the terms of non-exclusive license.
The GPL is irrelevant to co-authors because they have exclusive
ownership.

Post by Hyman Rosen

Post by Alexander Terekhov
The GPL doesn't have to say anything about joint works
(just like in the case of no license at all) for a joint
work created that is available to non-coauthors under the
GPL. Coauthors don't need any non-exclusive license --
they have exclusive ownership!!!

They cannot be co-authors except as they accept the GPL,
because they otherwise have no permission to create a
derivative work from GPL-licensed code.

Tou ease your mind a bit, think of a case when a contribution to the
joint work isn't a derivative work of pre-existing contributions to that
joint work.

Next think about the fact that there is nothing in the GPL saying that
derivative works can't be joined into joint works (and that would be
unenforceable anyway).

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
The GPL is irrelevant to co-authors because they have exclusive
ownership.

No one can become a joint author on GPLed code because
they have no permission to create a derivative work
except under the GPL. The original author, having
released the work under the GPL, has clearly indicated
his intention not to form a joint work.

Post by Alexander Terekhov
Tou ease your mind a bit, think of a case when a contribution to the
joint work isn't a derivative work of pre-existing contributions to that
joint work.
Next think about the fact that there is nothing in the GPL saying that
derivative works can't be joined into joint works (and that would be
unenforceable anyway).

It is not a joint work to begin with. There is no such
thing as a contribution to the work that is not a
derivative work. Someone may prepare a new collective
work using a GPLed component, but that work must be
licensed as a whole under the GPL in order to copy and
distribute it. That author may announce his intention
to create a joint work, but that cannot affect the
status of the component; no one may help themselves to
the work of another and become its co-author, and that
component may only be distributed as part of a collective
work under the terms of the GPL.

[Alexander Terekhov]

Post by Hyman Rosen

Post by Alexander Terekhov
The GPL is irrelevant to co-authors because they have exclusive
ownership.

No one can become a joint author on GPLed code because

Yeah, yeah, and airplanes can't fly at all because the GPL doesn't say
that airplanes can fly.

Take your meds and call your doctor Hyman.

regards,
alexander.

P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

P.P.S. "the registered work is a compilation"

Hyman's lovin' http://en.wikisource.org/wiki/Gaiman_v._McFarlane

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Hyman Rosen]

Post by Alexander Terekhov
Yeah, yeah, and airplanes can't fly at all because the GPL
doesn't say that airplanes can fly.

Whenever you post a content-free response, a fairy gets its wings.

[David Kastrup]

Post by Hyman Rosen

Post by Alexander Terekhov
Yeah, yeah, and airplanes can't fly at all because the GPL
doesn't say that airplanes can fly.

Whenever you post a content-free response, a fairy gets its wings.

We got too many winged beasts circling the horses here in summer
already.

[RJack]

Post by Alexander Terekhov

Post by Alexander Terekhov
A joint work can be created without any license at all.

But when there is a license, the presumption is that the license
states the terms.

Take your meds Hyman. The GPL states the terms of non-exclusive
license. The GPL is irrelevant to co-authors because they have
exclusive ownership.

Quite true. The GPL license is a non-exclusive license it CANNOT speak
to intent for purposes of ownership of a joint work or any other work
for that matter:

17 USC sec. 101 -- A “transfer of copyright ownership” is an assignment,
mortgage, exclusive license, or any other conveyance, alienation, or
hypothecation of a copyright or of any of the exclusive rights comprised
in a copyright, whether or not it is limited in time or place of effect,
but not including a nonexclusive license.

We are not speaking about the intent of the developers concerning the
GPL and "all third parties" (meaning the general public -- remember
"General Public License"?) but the relationship among the *developers*
themselves. The GPL is irrelevant to the intent among the contributing
developers. The developers *actions* carry far for weight than any
*language* about intent.

Alexander is correct. The operative definition of a joint work as
defined in the Copyright Act controls in this case:

17 USC sec. 101 -- A “joint work” is a work prepared by two or more
authors with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole.

BusyBox is undoubtedly a joint work of authorship.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
We are not speaking about the intent of the developers concerning the
GPL and "all third parties" (meaning the general public -- remember
"General Public License"?) but the relationship among the *developers*
themselves. The GPL is irrelevant to the intent among the contributing
developers. The developers *actions* carry far for weight than any
*language* about intent.

The GPL is entirely relevant - intent can be imputed when there
is no document describing the relationship among several authors,
but when there is such documentation, there is no need to search
for intent. The authors have all stated exactly what the copyright
relationship among them is, by using the GPL as their license. Had
they wished to create a joint work, they would have said so in the
license. But they did not.

The notion that a joint work happens by accident is laughable.
This is what a document creating a joint work looks like:
<http://www.openoffice.org/licenses/jca.pdf>
1. Contributor owns, and has sufficient rights to contribute,
all source code and related material intended to be compiled
or integrated with the source code for the OpenOffice.org open
source product (the "Contribution") which Contributor has ever
delivered, and Sun has accepted, for incorporation into the
technology made available under the OpenOffice.org open source
project.
2. Contributor hereby assigns to Sun joint ownership in all
worldwide common law and statutory rights associated with the
copyrights, copyright application, copyright registration and
moral rights in the Contribution to the extent allowable under
applicable local laws and copyright conventions. Contributor
agrees that this assignment may be submitted by Sun to register
a copyright in the Contribution. Contributor retains the right
to use the Contribution for Contributor's own purposes. This
Joint Copyright Assignment supersedes and replaces all prior
copyright assignments made by Contributor to Sun under the
OpenOffice.org project.
3. Contributor is legally entitled to grant the above assignment
and agrees not to provide any Contribution that violates any law
or breaches any contract.

[chrisv]

Post by Hyman Rosen

Post by Alexander Terekhov
Why didn't Erik Andersen fork the busybox to create his
own non-joint version of busybox?

As far as I understand, he made changes to BusyBox to
produce a new version. "Fork" would imply that he was
making a version separate from one undergoing development
by someone else. I do not know the history of BusyBox well
enough to say if this was the case, but I would suspect
that it wasn't.
There is no joint copyright version of BusyBox, so asking
why he did not create his own non-joint version makes an
untrue implication.

Post by Alexander Terekhov
They "agree and intend to do so" by posting contributions
to joint work projects like busybox

Good gravy, what a ludicrous claim. You are a fscking idiot.

Post by Hyman Rosen
They do not. They post contributions to GPL-licensed
programs, and the GPL is the only documentation of
their intent. If the GPL intended to create a joint
work it would say so, and since it does not, no joint
work is created. Indeed, since the GPL spells out that
GPLed work may be distributed only under the GPL, while
joint authorship would allow later authors to distribute
the work otherwise, it is clear that the GPL intends not
to create a joint work.

[David Kastrup]

Post by Alexander Terekhov

Post by Hyman Rosen

Post by Alexander Terekhov
One *SINGLE* (consisting of a separate unique whole) project is not a
joint work although it produces a (single) (combined) "larger program"???

Correct. A joint work is created only when all of its

Why didn't Erik Andersen fork the busybox to create his own non-joint
version of busybox?

How would you know the difference? He did not have to negotiate
permission with previous authors for continuing to maintain it.

With free software, there is no way to know which is the fork, and which
the mainline.

If you take a look at gcc history, you'll find that the egcs fork became
the main line eventually.

[RJack]

Post by Alexander Terekhov
Heck, are you seriously suggesting that the GPL doesn't intend to
"protect" user's rights indended to be equal to the developers
rights and that co-author's developer rights under the GPL are not
equal rights to the other co-author(s)

People who release code under the GPL grant others the right to
create derivative works and copy and distribute those works provided
that they are distributed under the GPL. There is no basis for
claiming that a person releasing code under the GPL is volunteering
to give downstream authors joint copyright in the original work.
Indeed, the GPL, as a copyright license, enumerates the only ways
that another author may prepare and copy and distribute derivative
works outside of what copyright law alone would permit,

????????????????? OUTSIDE OF COPYRIGHT LAW? ??????????????????????????
That's pure contract law for those GPL users! Oh dear Hyman, just show
me the downstream contractual "privity" required to make this crackpot
scheme enforcable.

and since the GPL does not grant such other authors joint copyright,
they do not have it.

You GPL thumpers are just like Bible thumpers when relying on the
literal languge of the GPL. You confuse contract *construction" with the
"interpretation" of contract language intent:


"In Ram Construction, we defined "construction" of a contract as the
process of determining its legal effect. Id. at 1053 (citing 3 Corbin on
Contracts Sec. 534). Interpretation, in contrast, is a narrower process
of ascertaining the meaning of the particular words used and their
applicability to a specific factual situation. The distinction is
clearly stated by Williston: "The word 'interpretation' is used with
respect to language itself; it is the process of applying the legal
standard to expressions found in the agreement in order to determine
their meaning. 'Construction,' on the other hand, is used to determine,
not the sense of the words or symbols, but the legal meaning of the
entire contract; the word is rightly used wherever the import of the
writing is made to depend upon a special sense imposed by law."
Williston on Contracts Sec. 602, at 320 (3d ed. 1961). See also
Patterson, The Interpretation and Construction of Contracts, 64
Colum.L.Rev. 833, 833-36 (1964)."
JOHN F. HARKINS COMPANY, INC. v. The WALDINGER CORPORATION 796 F.2d 657
(3rd Cir 1986).

Operation of copyright law definition supercedes language intent.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

????????????????? OUTSIDE OF COPYRIGHT LAW? ??????????????????????????
That's pure contract law for those GPL users! Oh dear Hyman, just show
me the downstream contractual "privity" required to make this crackpot
scheme enforcable.

Anyone who does not believe that the GPL is meaningful must
then limit himself to using GPLed code only in the way pure
copyright law allows, since they have nothing else which
grants them the ability to do otherwise. That's fine.

[RJack]

????????????????? OUTSIDE OF COPYRIGHT LAW?
?????????????????????????? That's pure contract law for those GPL
users! Oh dear Hyman, just show me the downstream contractual
"privity" required to make this crackpot scheme enforcable.

Anyone who does not believe that the GPL is meaningful must then
limit himself to using GPLed code only in the way pure copyright law
allows, since they have nothing else which grants them the ability
to do otherwise. That's fine.

You can't constrain the GPL license to "pure copyright law".
All copyright licenses are contracts:

"Although the United States Copyright Act, 17 U.S.C. 101-
1332, grants exclusive jurisdiction for infringement claims to the
federal courts, those courts construe copyrights as contracts and
turn to the relevant state law to interpret them."; Automation by
Design, Inc. v. Raybestos Products Co., 463 F.3d 749, (United
States Court of Appeals for the Seventh Circuit 2006).

Presumably, some folks desire the GPL be legally enforceable. For those
who do, they must accept the construction of the GPL under general
contract principles:

"Whether express or implied, a license is a contract 'governed
by ordinary principles of state contract law.'"; McCoy v.
Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of
Appeals for the Federal Circuit 1995)

"Normal rules of contract construction are generally applied in
construing copyright agreements. Nimmer on Copyright sec. 10.08."
Amcast Indus. Corp. v. Affiliated FM Ins. Co., 584 N.W.2d 218, 226
(Wis. App. 1998). 187 F.3d 690 (7th Cir. 1999).

---------------------------------------------------------------------
Hyman, I know that you, DAK, Alan and other interested contributors are
are always open to the research in scholarly legal journals such as the
"The American Bar Association's Intellectual Property Newsletter" and
the "Chicago-Kent Journal of Intellectual Property". Here are two
fascinating and well researched articles by legal experts. They are
copyrighted so I can't provide the text but you can easily access them
at your favorite local law library or purchase them online:

1) 2007-01-15 - ABA IP Journal Publishes Article by Skye Group Managing
Director: "The American Bar Association's Intellectual Property
Newsletter has published an article by Managing Director Doug Hass
entitled "The Myth of Copyleft Protection: Reconciling the GPL and Linux
with the Copyright Act. Read the article starting on page 22 in the Fall
2006 issue."

2) "A Gentlemen's Agreement: Assessing the GNU General Public License
and its Adaptation to Linux". Chicago-Kent Journal of Intellectual
Property, Vol. 6, p. 213, 2007.
------------------------------------------------------------------------

"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

They are copyrighted so I can't provide the text but you
can easily access them at your favorite local law library

I haven't read them yet, but they're available for free:
<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID966338_code410303.pdf?abstractid=957377&rulid=10853827&mirid=1>
<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID987294_code410303.pdf?abstractid=951842&mirid=1>

They are both by the same author, Douglas A. Hass.
Nothing wrong with that, except that they will not
represent independent points of view.

[Hyman Rosen]

1) 2007-01-15 - ABA IP Journal Publishes Article by Skye Group Managing
Director: "The American Bar Association's Intellectual Property
Newsletter has published an article by Managing Director Doug Hass
entitled "The Myth of Copyleft Protection: Reconciling the GPL and Linux
with the Copyright Act. Read the article starting on page 22 in the Fall
2006 issue."

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1261628_code372661.pdf?abstractid=1261628&mirid=1>
"The FSF and the Linux community should embrace closed source code"

So we see where this author is coming from. Thanks, but no thanks.

The rest of this paper is useless. It spends a bunch of time pointing
out that the issue of whether separately loadable Linux kernel modules
fall under the GPL could be complicated, but it's most likely that
they don't. Um, OK. I think we all already know that. It's only the
FSF that thinks otherwise, with their expansive and wrong view of what
a derivative work is.

[Hyman Rosen]

Sorry, wrong link to the paper. It's
<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID966338_code410303.pdf?abstractid=957377&rulid=10853909&mirid=1>

Post by Hyman Rosen

1) 2007-01-15 - ABA IP Journal Publishes Article by Skye Group Managing
Director: "The American Bar Association's Intellectual Property
Newsletter has published an article by Managing Director Doug Hass
entitled "The Myth of Copyleft Protection: Reconciling the GPL and Linux
with the Copyright Act. Read the article starting on page 22 in the Fall
2006 issue."

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1261628_code372661.pdf?abstractid=1261628&mirid=1>
"The FSF and the Linux community should embrace closed source code"
So we see where this author is coming from. Thanks, but no thanks.
The rest of this paper is useless. It spends a bunch of time pointing
out that the issue of whether separately loadable Linux kernel modules
fall under the GPL could be complicated, but it's most likely that
they don't. Um, OK. I think we all already know that. It's only the
FSF that thinks otherwise, with their expansive and wrong view of what
a derivative work is.

[RJack]

Post by Hyman Rosen

1) 2007-01-15 - ABA IP Journal Publishes Article by Skye Group
Managing Director: "The American Bar Association's Intellectual
Property Newsletter has published an article by Managing Director
Doug Hass entitled "The Myth of Copyleft Protection: Reconciling
the GPL and Linux with the Copyright Act. Read the article starting
on page 22 in the Fall 2006 issue."

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1261628_code372661.pdf?abstractid=1261628&mirid=1>
"The FSF and the Linux community should embrace closed source code"
So we see where this author is coming from. Thanks, but no thanks.
The rest of this paper is useless. It spends a bunch of time pointing
out that the issue of whether separately loadable Linux kernel
modules fall under the GPL could be complicated, but it's most likely
that they don't. Um, OK. I think we all already know that. It's only
the FSF that thinks otherwise, with their expansive and wrong view of
what a derivative work is.

Your link addresses EC competition law. I have no working knowledge of
European law concerning these matters.


"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)

[Hyman Rosen]

Post by RJack
Your link addresses EC competition law. I have no working knowledge of
European law concerning these matters.

Yeah, sorry about that - a Google search for the paper
turn up that one first. I've posted the correct link
elsewhere.

[Hyman Rosen]

2) "A Gentlemen's Agreement: Assessing the GNU General Public License
and its Adaptation to Linux". Chicago-Kent Journal of Intellectual
Property, Vol. 6, p. 213, 2007.

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID987294_code410303.pdf?abstractid=951842&mirid=1>
Existing case law surrounding shrinkwrap and browsewrap
licenses that use a notice-plus-conduct model suggests
that courts would find that the GPL creates an enforceable
contract, if a party challenged this point directly.
...
However, as long as the requirement of the GPL is clear to
both licensor and licensee before contract formation, then
the notice-plus-conduct model contemplated by the GPL
operates successfully despite the lack of formal notice in
practice. Courts will likely hold Linux developers to the
same standard as parties who receive printed forms and
choose not to read them.
...
Regardless of the interpretation of the GPL as a license or
as a contract, the text of the GPL helps to determine its
enforceability.

Thanks for the reference. The paper has a lot of analysis of
GPL-related stuff, such as license vs. contract and the status
of Linux kernel modules, but doesn't say anything terribly
profound. As in the other paper, the author states his wish for
the FSF and Linux to embrace non-free software, to which I'm
sure the response will be "no, thanks". Otherwise, it's actually
quite supportive of the GPL.

[David Kastrup]

Post by Hyman Rosen

2) "A Gentlemen's Agreement: Assessing the GNU General Public License
and its Adaptation to Linux". Chicago-Kent Journal of Intellectual
Property, Vol. 6, p. 213, 2007.

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID987294_code410303.pdf?abstractid=951842&mirid=1>
Existing case law surrounding shrinkwrap and browsewrap
licenses that use a notice-plus-conduct model suggests
that courts would find that the GPL creates an enforceable
contract, if a party challenged this point directly.

That's simply nonsensical since the GPL is not on software wrappings and
not clickthrough and not notice-plus-conduct. It would appear that the
author of the paper is not familiar with the usual distribution forms.

There is no "by opening this package you signify your acceptance" or "by
clicking this button you signify your acceptance" or similar.

Post by Hyman Rosen
...
However, as long as the requirement of the GPL is clear to
both licensor and licensee before contract formation, then
the notice-plus-conduct model contemplated by the GPL
operates successfully despite the lack of formal notice in
practice. Courts will likely hold Linux developers to the
same standard as parties who receive printed forms and
choose not to read them.
...
Regardless of the interpretation of the GPL as a license or
as a contract, the text of the GPL helps to determine its
enforceability.

In a way. The text of the GPL states that it is your own choice whether
you accept it or not. So the determination is "no".

[RJack]

Post by David Kastrup

Post by Hyman Rosen

2) "A Gentlemen's Agreement: Assessing the GNU General Public
License and its Adaptation to Linux". Chicago-Kent Journal of
Intellectual Property, Vol. 6, p. 213, 2007.

<http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID987294_code410303.pdf?abstractid=951842&mirid=1>
Existing case law surrounding shrinkwrap and browsewrap licenses
that use a notice-plus-conduct model suggests that courts would
find that the GPL creates an enforceable contract, if a party
challenged this point directly.

That's simply nonsensical since the GPL is not on software wrappings
and not clickthrough and not notice-plus-conduct. It would appear
that the author of the paper is not familiar with the usual
distribution forms.

I stated the papers were interesting to read for legal perspective.
I disagree totally with the author that the courts would find the GPL
to be an enforceable contract. I have forever claimed that the GPL is
a preempted contract (by 17 USC sec. 301(a)). Scholarly legal
speculation is very interesting and may provide insights into how a
court might rule. Until the federal judiciary rules on the
enforceability of the GPL we shall continue to argue our positions.
The man in the flowing black robes is the only guy whose opinion counts
-- if needed a United States Federal Marshal will enforce his ruling.

That's why arguing using case law and court precedent from judges is the
surest ground to stand upon to answer these questions short of an actual
judicial decree.

Post by David Kastrup
There is no "by opening this package you signify your acceptance" or
"by clicking this button you signify your acceptance" or similar.

Post by Hyman Rosen
... However, as long as the requirement of the GPL is clear to both
licensor and licensee before contract formation, then the
notice-plus-conduct model contemplated by the GPL operates
successfully despite the lack of formal notice in practice. Courts
will likely hold Linux developers to the same standard as parties
who receive printed forms and choose not to read them. ...
Regardless of the interpretation of the GPL as a license or as a
contract, the text of the GPL helps to determine its
enforceability.

There is no question as to whether the GPL is a "license" OR "contract".
For the past eighty three years, since the Supreme Court ruled in DE
FOREST RADIO TEL. CO. V. UNITED STATES, 273 U. S. 236 (1927)
the federal courts have ruled *without exception* that an intellectual
property license IS a contract.

"[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be."; HUTTO v. DAVIS, 454 U.S. 370 (1982).

Post by David Kastrup
In a way. The text of the GPL states that it is your own choice
whether you accept it or not. So the determination is "no".

"The Captain's scared them out of the water!"
http://www.fini.tv/blog/finishing_line_files/a44f9390355368f87dc47b7ec094f93e-36.php

ROFL. ROFL. ROFL.

Sincerely,
RJack :)