Re: Justice draws nigh

[RJack]

amicus_curious wrote:

> "File for show, settle for dough" is unlikely to work here.

It is instructive to examine what the plaintiffs filed in their
"contemplated motion for summary judgment":

"Plaintiffs own valid copyrights in BusyBox. Plaintiff Erik Andersen is
a computer programmer and beginning in 2002 he wrote and then submitted
code for inclusion into the BusyBox project. Mr. Andersen is the
copyright owner in his contributions to BusyBox and he registered his
copyright in 2008. See, "BusyBox,v.0.60.3.", Copyright Reg. No.
TX0006869051 (10/2/2008)."

*** 1) "Plaintiffs own valid copyrights in BusyBox".


The plaintiffs are "SOFTWARE FREEDOM CONSERVANCY, INC." and Erik
Andersen". Unless the SFLC can demonstrate that the SOFTWARE FREEDOM
CONSERVANCY, INC. owns code in the BusyBox project, the claim is a FALSE
statement.

Please note Second Circuit law:

"[T]he Copyright Law is quite specific in stating that only the "owner
of an exclusive right under a copyright" may bring suit"; Eden Toys Inc
v. Florelee Undergarment Co Inc, 697 F.2d 27 (2nd Cir 1983).


*** 2) "Plaintiff Erik Andersen is a computer programmer and beginning
in 2002 he wrote and then submitted code for inclusion into the BusyBox
project. Mr. Andersen is the copyright owner in his contributions to
BusyBox and he registered his copyright in 2008."


A derivative work has a *unique* owner if and only if the preexisting
author and the contributing author are the same legal entity because of
17 USC § 103(b):

"§ 103 · Subject matter of copyright: Compilations and derivative works.

(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material."

A derivative work that is authorized by a *preexisting* author and a
distinct "modifying author" has no unique *owner* unless a transfer of
ownership by contract of the distinct parts to a unique entity has been
effected (absent a work for hire relationship).

Mr. Andersen clearly does not own BusyBox by his own admission. He owns
exclusive rights in *his* modifying code but unless he can show
ownership of BusyBox as a derivative work, he cannot claim any exclusive
right in the derivative work identified as "BusyBox v.0.60.3". Mr.
Andersen has no legal right to REGISTER a work in which he holds no
exclusive rights.

"When an original author and an author of a derivative work are
different, their respective rights are generally addressed by a contract
between them.[24] In these situations, it is clear that two works have
been created, requiring separate copyright registrations to preserve
those rights in court."
http://www.oblon.com/media/index.php?id=41#_ednref24

Sincerely,
RJack :)