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Re: Big blow to GPL linking nonsense.


From: Rex Ballard
Subject: Re: Big blow to GPL linking nonsense.
Date: Wed, 08 Dec 2010 15:55:52 -0000
User-agent: G2/1.0

On May 16, 10:50 am, RJack <address@hidden> wrote:
> The following decision probably settles most questions touching upon
> copyright law and dynamically linking to open source code and vice
> versa. Simply placing a hook in GPL source code to call independent
> proprietary drivers or libraries is fully protected by 17 USC sec. 117.
> Simply dynamically calling GPL code doesn't involve copyright questions
> at all.

The entire judgement seems to overturn nearly 35 years of copyright
law.

The first question, which the Judge avoided issuing a ruling on, was
whether the copyrighted work was work for hire.  In 1976 copyright law
distinguished work for contract from work for hire.  In this case, the
claim of the plaintiff was that the software was written during
negotiation for a contract, and that the terms of the contract were
unacceptable.  He apparently had been paid something, and so under a
settlement he offered them a set of license terms in which they were
permitted to use the software he wrote, in their binary form.

Had the judge ruled instead that that this was just software for hire
and that the defendent owned the copyrights themselves - which
requires a prior written agreement with the person as part of an
employment agreement.  Most companies have employees sign explicit
intellectual rights agreements in which employees agree to grant the
employers all intellectual property rights related to the profession
for which they are hired.  In this case, there was no such agreement
of employment and no such agreement of assignment of intellectual
property rights.

The defendant did admit that they had been given a software license
agreement, and that they had accepted the terms agreement by using the
software they had been given - the equivalent of "i accept".  The
defendant also admitted that it reverse engineered the software -
therefore creating a "derivative work" from the copyrighted work, and
claimed that it owned this derivative work exclusively, even though
they had explicitly NOT been given any of these rights.

The Judge decided to disregard these precepts of copyright law and
accepted the rulings of a lower magistrate, who seemed to assume that
simply because the defendant possessed copies of the code, that this
was sufficient basis to grant them "ownership" of the copyrighted
work, even though they were clearly only given a license to the
copyrighted work and had no assignment of intellectual property rights
agreement under an employment agreement.  Based on the lack of
evidence - at minimum the summary judgement should have gone in favor
of the plaintiff, not the defendant, or deferred until further
disclosures were ordered and a sufficient body of discovery to
determine, based on the preponderance of discovery evidence whether a
summary judgement was warranted.

The judge further decided that rather than honor the restrictions on
derivative works which prevents the licensee from doing self-applied
upgrades, a fundamental basis for "for-fee" upgrades for applications
published by major vendors like Microsoft, Borland, Lotus, Corel, and
most other major software companies, the judge ruled that the
defendent had the right to make any modifications they wished to make
the software "useful" under the new circumstances.  This would be a
bit like a judge ruling that hackers have the legal right to unlock
software and publish the unlock codes - because it makes the software
"useful" on "new hardware and software" - even if that's a
competitor's product.

Ironically, it's highly likely that Krouse will find some interesting
allies backing his appeal, possibly even to the Supreme court, at
least making a case for a remand to get a full trial or settlement.
The Summary judgement was premature at best, and a dangerous precedent
at worst.

It's unlikely that companies like Microsoft, Oracle, and IBM would
want such a ruling to stand, because it establishes an ambiguous
precedent that possession of a copyrighted work gives the possessor
the right to create derivative works based on the mere possession of
the work.



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