https://www.reddit.com/r/KotakuInAction/comments/4grdtb/censorship_linux_developer_steals_page_from_randi/
I also want to respond by saying that although everyone is falling over
the Grsecurity developer, especially with relation to that reddit post
you cite, and even though his responses might be petty and
small-hearted, the actual issue in that post started with another
developer saying:
"yeeeeah." and "try reading the code next time". Which I consider wholly
inappropriate as a means to talk to people in that sense and if his
(Bradley Spengler's) responses are petty, they are only so in response
to something else that was rather much of an insult in the first place.
A rather "unavailable" insult perhaps, as people ignore it and only
focus on what he does or has done in return to that.
But this is unrelated to this matter; but may indeed shed a certain
light on this person that I feel is unwarranted here.
More to the point, if I may:
I try to teach them that there is more to the law than their license
but they won't listen.
Mr. Concernedfossdev, you still need to state or decide what you want to
be the consequence of your actions.
In much the same way, as the excellent article you cited, makes the
distinction between the technicalities that define the GPL FAQ (for
instance) and what copyright law is actually about (substantial
similarity, intended use, nature of the material, market impact) you
will need to not just make technical statements and assumptions here (as
related to how you feel copyright law should be put into effect) by also
/WHY/ you want that.
See, for instance "market impact" -- there is zero negative impact on
the market potential and penetration and dominance of the patches on the
linux kernel itself. If anything, it enhances the demand for it.
The commercial use of GrSecurity may speak in favour of your argument.
The nature of the material may not; because even though it is a creative
work, it is also highly functional, and cannot be considered "the
continuation of a story" in full effect. It could also be considered
that the patches *could* be applied to any other given kernel as well;
although this is not the case, there is similarity between this and e.g.
the nVidia patches. So you need to also make the argument that that
module is a derivative work. This needs to be less strong, because the
patches actually do change the core kernel. Yet, the patches clearly
constitute a substantial creative work by themselves, and do not
actually incorporate, in that sense, the original product.
Then you must probably answer "why"?
- do you seek to obtain free access to the code or the product?
- are you just protecting people's rights? (Not Convincing).
- are your personal interests being harmed because you have a bigger
claim to those patches, than the person has to his exclusivity on them?
I don't think that will easily pass.
I think the courts will look at interests being harmed in the first
place.
In all of the other court examples stated in that article (and also on
Wikipedia) there was a clear battle of interests, of commercial
interests, and of financial interests. In this case, it is lacking. I am
not a lawyer, but I don't think all lawyers are so great either.
I am pretty sure, though, that the courts are going to weigh interests
against each other, since that is what copyright is about.
And you will have to decisively show that the benefits of gaining access
to that code (for anyone) outweigh the current commercial interests of
that company, as well as a business model for which there is no
alternative (which could be up for debate).
See to my belief courts usually weigh actual people interests, and the
reason why no one other than the actual parties involved, can go to
court about it. So you must also explain what will be the consequences
if your actions succeed.
And this I really would ask of you here as well. Have you considered
what would actually happen?
- would that person go out of business?
- would he have to stop working on this?
- would "the community" actually claim "ownership" and try to develop it
of its own? What about the substantial copyright the author has on his
own work?
I mean, would you actually consider real people interests?
I do believe, perhaps, that if you can show that this person is
exorbitantly profiting, this will weigh against the statement or
argument that he has a 'fair use' of the code, but at the same time you
still need to show that he requires copyright permission to even do this
work.
As a first party (the linux kernel copyright holders) you must show that
you are being harmed in your interests in any substantial degree. This
is clearly up for debate.
And the actual consequence would be that no one can actually develop
anything proprietary ever, which excludes most if not all business
models based on the ownership of a certain work, or any right to it. And
while you would argue that the resulting work must be distributed under
GPL, it is not clear to anyone (outside of the GPL world at least) how
this would /NOT/ damage everyone involved.
I would not, if I am fair, any pressure.... I would not mind any
pressure on this person, in this sense, as a matter of saying, but also
in a general case, when I read those words of $17.000/yr contracts... I
would consider that "exploitation" myself. But apparently in law,
"derivative work" first needs to pass.
But I want to reply shortly to the comment you made to my own post, and
leave it that now.
Regards.
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