On Mon, Dec 26, 2011 at 9:46 AM, Rick Moen <[email protected]> wrote: > Quoting Clark C. Evans ([email protected]): > >> What was also on my mind was an informal side chat >> with an attorney on the stack overflow question [1]. >> I was referred to the GNU FAQ, especially the answer >> for plug-ins [2] where the applicability of the copyleft >> "depends on how the program invokes its plug-ins" and >> aggregation [3] where it says "sockets... are normally >> used between two separate programs". This attorney >> said the specific details of the case were necessary >> to give any advice, but after my insistence, commented >> that the community consensus is likely correct. > > OK, thanks for clarifying. There are several claims in FSF's GPL FAQ > that are rather infamously misleading and doubtful, that being the most > notorious one. When one reads caselaw clarifying the concept of > derivative work, it becomes obvious that the claim stated there is > simply incorrect. > > You will, I suspect, also come to the view that no method of software > intercommunication is a magic talisman. One creative work is derivative > of the other, or is not, as a result of a judge's application of > standard conceptual criteria used in copyright cases. > > You will find scant 100% relevant caselaw, however. A few examples of > what you will find: > > o 2010 suit against Westinghouse Digital Electronics (I believe, > settled on plaintiff's terms) > o 2010? suits against Best Buy, Samsung Electronics America, and JVC > Americas (I believe, settled on plaintiff's terms) > o 2009 suit against Edu4, Paris Court of Appeals > (adjudicated for plaintiff) > o 2008 suit against AVM Computersysteme Vertriebs GmbH and Cybits AG > (adjudicated for plaintiff) > o 2008 suit 'Welte vs. Skype Technologies SA' in a German court > (adjudicated for plaintiff) > o 2007 suits against Xterasys and High-Gain Antennas (probably settled, > not adjudicated) > o 2007 suits against Monsoon Multimedia (settled, not adjudicated) > o 2006 suit against D-Link Germany GmbH > o 2005 suit against Fortinet UK Ltd. in Munich district court > (preliminary injunction upheld) > o 2004 suit against Sitecom Deutschland GmbH in Munich district court > (preliminary injunction upheld) > o 2001 suit against Dlink Deutschland GmbH in a Frankfurt court > (adjudicated for plaintiff)
> None of these have directly involved the sort of technological shim > workaround you are curious about, so you are logically reduced to > predicting how a judge would rule based on copyright cases and your > understanding of derivative works generally. Clue: Judges are rather > likely to ignore handwaves about magic-talisman technology, and to apply > conceptual tests from copyright caselaw to determine whether the > allegedly infringing work is derivative or not. > > And, to the extent there is doubt, and that the probabilities will > depend on the specific facts of cases, sorry, there's simply doubt. > > >> Unfortunately, this doesn't give me enough guidance on >> the applicability of copyleft; specifically with my >> 3-work scenario where someone uses a shim/adapter to >> include proprietary functionality via a WebAPI. I keep >> asking this in this public forum since it matters quite >> a bit to the effectiveness of the GPL. > > What you really should be doing -- to understand the underlying law -- > is studying what leads judges to believe that one work is derivative of > another. (That of course does not tell you what is 'acceptable to the > community[1]', an entirely different question.) You'll also want to study > contract law, which is often and perhaps always relevant alongside > copyright law. Precisely. As far as US copyright law, I would suggest starting the Apple v. Microsoft (1994) and Gates Rubber v. Bando.... > >> ...does the GPLv3 actually prevent... > > GPLv3 doesn't prevent a blessed thing. > > Copyright law and contract law make particular actions concerning > software and other creative works tortious, making it possible for the > offended party to get remedies in law and (maybe) in equity. > > > [1] I don't see what 'the community' has to do with the matter at hand. > If there's an alleged tort, someone with standing either sues or not. > If he/she sues, the case is well argued or not. Plaintiff prevails or > not -- and 'the community' isn't particularly relevant. Best Wishes, Chris Travers _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
