Re: [News] SFLC Responds to Copyright Misconceptions, Presents Moglen Talk

[Hyman Rosen]

On 2/10/2010 10:08 AM, Alexander Terekhov wrote:
> At some point, the New York bar will have no choice but to disbar the
> entire gang of utterly incompetent GNU arch legal beagles from SFLC for
> consistent filing of frivolous lawsuits such as
> http://www.softwarefreedom.org/news/2009/dec/14/busybox-gpl-lawsuit/ in
> which (1) "the Software Freedom Conservancy" is utterly frivolous
> 'plaintiff' because it doesn't own ANY busybox copyrights and (2) Erik
> Andersen is also utterly frivolous 'plaintiff' because he was NOT joined
> by Bruce Perens and other contributors to the joint work known as
> busybox at http://busybox.net/.

The SFLC has had successful outcomes in every single case
that it has filed - all defendants have come into compliance
with the GPL. No defendant has chosen to fight the plaintiffs.
I understand how frustrating it must be for the GPL skeptics
to see such untrammeled success, and how they must hope for
some external force to appear and turn things their way. But
that won't happen.

You are also quite wrong about joint works in at leats
four separate ways.

<http://library.findlaw.com/1999/Jan/1/241478.html>,
    According to the Copyright Act, the authors of a joint
    work jointly own the copyright in the work they create.
    A joint work is defined in Section 101 of 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."

    When the copyright in a work is jointly owned, each joint
    owner can use or license the work in the United States
    without the consent of the other owner, provided that the
    use does not destroy the value of the work and the parties
    do not have an agreement requiring the consent of each
    owner for use or licensing. A joint owner who licenses a
    work must share any royalties he or she receives with the
    other owners.

First, BusyBox is a joint work only if all the authors have
agreed to make it so. Given that one of the authors is a party
to the suit and can insist that he did not intend to form such
a joint work, the plaintiffs might have a difficult time showing
otherwise.

Second, if BusyBox is a joint work, then each author has full
rights in the work and may sue for infringement without needing
permission from the other authors.

Third, even if BusyBox is a joint work, each contributing author
has released his changes under the GPL, and therefore it may be
argued that there is an agreement in place among the authors that
the only way their work may be copied and distributed is by GPL.

Fourth, even if BusyBox is a joint work, the plaintiffs need to
demonstrate that they have permission to copy and distribute it
in some way other than under the GPL, granted to them by some
author of the joint work. That one author has said after the
suit was filed that he does not want to be a party to it does
not mean that he has granted permission to copy and distribute
BusyBox outside of the GPL.