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Re: softwarefreedom.org and busybox fellows 'win' DEFAULT JUDGMENT


From: Tim Smith
Subject: Re: softwarefreedom.org and busybox fellows 'win' DEFAULT JUDGMENT
Date: Sun, 14 Sep 2008 13:40:50 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <address@hidden>,
 address@hidden (Rahul Dhesi) wrote:

> Tim Smith <address@hidden> writes:
> 
> >BusyBox, however, appears to be a US non-registered work, not a non-us
> >non-registered work.
> 
> To whom does it appear this way?  Not to any of the defendants so far.

The copyright holders named in the lawsuits reside in the US.  This is 
stated in the complaint.  Both of their resumes are on line, and 
indicate that they have been in the US for their college educations and 
for all their jobs.

Here's what makes a work a US work, from 17 USC 101:

====== begin quote =====
For purposes of section 411, a work is a ³United States work² only if‹

(1) in the case of a published work, the work is first published‹

   (A) in the United States;

   (B) simultaneously in the United States and another treaty party or 
   parties, whose law grants a term of copyright protection that is the 
   same as or longer than the term provided in the United States;

   (C) simultaneously in the United States and a foreign nation that is 
   not a treaty party; or

   (D) in a foreign nation that is not a treaty party, and all of the 
   authors of the work are nationals, domiciliaries, or habitual 
   residents of, or in the case of an audiovisual work legal entities 
   with headquarters in, the United States;

(2) in the case of an unpublished work, all the authors of the work are 
nationals, domiciliaries, or habitual residents of the United States, 
or, in the case of an unpublished audiovisual work, all the authors are 
legal entities with headquarters in the United States; or

(3) in the case of a pictorial, graphic, or sculptural work incorporated 
in a building or structure, the building or structure is located in the 
United States.
====== end quote =====

They are both clearly nationals, domiciliaries, or habitual residents of 
the United States, so it sure looks like one or more of the alternatives 
above applies.

Hence, it appears that it is a US work.

As for non-registered, it appears that way because it does now show up 
in a search of the registration records at the Copyright Office.  I've 
searched for both authors named in the suit, and for Bruce Parens (he 
was the original author, although almost all his code has been replaced 
by code from the current authors, but I wanted to allow for the 
possibility that maybe his registration would still count, even without 
his code being in the current version).  There's also nothing under 
"BusyBox".

There are four registrations for "Busy Box" but they aren't the program.  
One is a textile pattern, one is a story, one is a reading activities 
booklet for kids, and one is a bedroom suite.

There are 8 registrations from people named Erik Andersen.  We can 
eliminate one right away, as it is an Erik Kaae Andersen, and BusyBox's 
Andersen is Erik B. Andersen, according to his resume, so that leaves 7 
potential registrations.  His resume also notes he got his bachelor's 
degree in 1995.  Assuming he went at the normal pace, that would put his 
birth year around 1974.

The Andersen's of the 7 registrations were born in 1955 (2 works), 1966 
(1 work), 1971 (1 work), and 1972 (3 works). So, if he's there, it is 
likely he's one of the last two Andersen's, but what the heck, there are 
only 7 works, so let's check them all.

1955 Andersen:

   * musical work, and his name is Erik G Andersen.  So, not him.
   * another musical work from the same Andersen.

1966 Andersen:

   * Erik C Andersen, and this is a treatment for a TV show named
     "Scavengers".

1971 Andersen:

   * A computer program named "Ilook imager".

1972 Andersen:

   * A compilation of 9 of his songs.  Obviously not BusyBox.
   * Another compilation of the same musician.
   * And more music from that Andersen.
   
So, only one of those Andersen's appears to be a programmer (the 1971 
Andersen), but that program is not BusyBox.  He's also a little earlier 
than the expected 1974 birth year for the BusyBox Andersen, but maybe 
the BusyBox Andersen took time off between high school and college, or 
took a year or two off in college to do other things.  That's not too 
uncommon, so 1971 is plausible.

"Ilook imager" appears to be a tool for law enforcement computer 
forensics.  The BusyBox Andersen does list this on his resume:

   Consulting/Software Development, June 2001-Present

      US Internal Revenue Service Criminal Investigation, Electronic 
      Crimes Division Development of custom software for forensic data 
      aquisition and analysis used by law enforcement agencies during 
      criminal investigations.

So he does work in computer forensics, and "Ilook imager" was registered 
in 2002, which is during the timeframe he's been doing that kind of 
work.  This might actually be the BusyBox Andersen!

However, it still isn't a registration for BusyBox.

Thus, it appears that BusyBox is an unregistered work.

> >Thus, we'd expect that even if someone were suing over a non-US work,
> >they would register before filing suit, to take advantage of the extra
> >remedies.
> 
> These extra remedies being what -- statutory damages?
> 
> Damages are probably not so important to the Busybox developers. The big
> stick they carry, which became bigger after the JMRI decision, is the
> threat of an injunction.

Registration lets you ask for statutory damages *and* attorney's fees.  
They might not care about statutory damages, but I bet they would like 
attorney's fees.

FYI, here are the JMRI registrations:

<http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?SC=Author&SA=Jacobsen%2C%
20Robert%20Gibbs%2C%201957%2D&PID=HbJy2Meq0jbJFKaTAsHondwzd&BROWSE=1&HC=1
1&SID=8>

> <http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?SC=Author&SA=Jacobsen%2C%20Robert%20Gibbs%2C%201957%2D&PID=HbJy2Meq0jbJFKaTAsHondwzd&BROWSE=1&HC=11&SID=8>

<http://tinyurl.com/6g5j2h>

These show up when searching for "JMRI" in the title, or the author in 
the name (or any of the authors for the ones that have multiple 
authors).  This provides a nice check to show that I am not totally 
botching the search form when I look for BusyBox.

-- 
--Tim Smith


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