Date: Tue, 03 Dec 2002 12:42:33 -0800 From: Terry Lambert <tlambert2@mindspring.com> To: "Gary W. Swearingen" <swear@attbi.com> Cc: freebsd-chat@freebsd.org Subject: Re: Is a port skeleton considered a derivative work under the GPL? Message-ID: <3DED1739.6CE2E06A@mindspring.com> References: <3DE9A680.4000702@pantherdragon.org> <3DE9B0CC.8A368E61@mindspring.com> <joadjo5j7q.djo@localhost.localdomain> <3DEBDA15.6EE31FB4@mindspring.com> <z78yz73s3u.yz7@localhost.localdomain>
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"Gary W. Swearingen" wrote: > Terry Lambert <tlambert2@mindspring.com> writes: > > [...] Case law is only binding on lower courts in the > > jurisdiction in which it was ajudicated (i.e. the 3rd Circuit Court > > of Appeals is not bound by the decisions of the 5th Circuit Court of > > Appeals). Only if a decision is made by the U.S. Supreme Court, is > > the case law binding on all U.S. courts. Realize that I am not a lawyer; on the balance, I've read all of USC, and all of several states commercial and criminal code, as of 1996, and I tend to keep up in areas that interest me, such as tort law and specifically Copyright. > OK, but where could it be adjudicated? To file and not get a summary dismissal, you have to have a cause of action in the jurisdiction in which you are filing. This means: 1) Any state in which the author of the software has a business presence. Generally, the state of original incorporation, but occasionally the state which the plaintiff feels would give them the most favorable result. 2) The state in which the cause of action occurred; this makes the defendant subject to state statutes as well. IMO, this is technically a double-jeopardy issue for criminal cases, but it's less clear in civil cases (i.e. if you rob a store and shoot someone, there are generally at least 5 charges at the state level, and then if you get off, the fed will try you for a civil rights violation, because the person you shot can no longer go to the theatre of their choice, for example, what with them being dead and all). The general "risk answer" is "your state, or the author's state", for Open Source software, since they are usually private citizens, who don't have a business presence in other state, not being corporate entities. The other issue with Open Source is that a successful project will have authors in nearly every interesting jurisdiction. A possible self-defense strategy for an Open Source project against a license violation in the preparation of a derivative work might be to have each contributin author for the infringed code (likely a subset of the community) file in every jurisdiction they have a physical presense in. This would require your appearance all over the country, and be expensive for you to defend yourself against without hiring proxies (usually lawyers) in those jurisdictions. This last is actually pretty low risk; I have yet to see a project use this strategy. Mostly this is because the projects object to commercial interests using their code, because they have a different idea of the word "use", which is better stated as "utilize" (just as their use of the word "free" is better stated as "liberated"). Such a strategy would basically be nothing more than legal harrasment; if so, you could get out of it with a judgement on proof of derivation. The general argument you seem to be aiming at, at least with the ports skeleton, is whether encapsulation is derivation. The answer to that one is "No", as I've stated previously. Realize that in terms of nuisance lawsuits, people could decide they don't like you, and file against you for "breathing their air", so not using their code doesn't mitigate your risk. 8-). > The jurisdiction of US federal > circuit courts apparently extend to Panama and overlap jurisdictions of > other circuit courts which also extend to Panama and overlap > jurisdictions of Panamanian courts. Yes, yes, we know: the U.S. legal system is a means of undeclared economic warfare, and it's being used that way more and more often. Write your congressman, or run for congress yourself. > Even in the case of US state courts > where contracts are first adjudicated, which state will handle an > infringement case? Where the infringer did his nasty deed, or from > where the licensor published the material infringed, or either? See above: the answer is "both". > It gets worse when one considers GPL licensors from other countries than > the infringer's. Not if you never plan to sell there or travel there. Selling an infringing product there is a definition local jurisdiction issue; merely creating the product is interpretational (they U.S. opened the door on that with the Skylarov arrest, and the current court case). In general, I would say that any first world country has jurisdiction over any second or third world country, and any second world country has jurisdiction over any third world country, so long as enforcement of that jurisdiction does not conflict with interests of a first world country. Third world countries have jurisdiction over squat. In general, the people there don't even own the atoms they are composed of. I expect first world countries to start licensing atoms to people, so that you can't own your own body outright, as soon as they can figure out how to put serial numbers on them and manage the accounting records. The GPL infection issue is a risk analysis issue. The answer is that, from a commercial perspective, the GPL is OK for tactical, but not strategic technology. Basically, you don't care about controlling tactical information, but you do care about controlling strategic. No matter what you do, you can't get rid of legal risk, you can only work to control and mitigate it. It's up to you how to assess the risk, and decide how much risk is accessible. I think for the specific case of the ports stuff, if we could get some GPL schmuck to claim ownership of a part related to a GPL'ed product, then that's just that much less code FreeBSD has to find some patsy to maintain, and FreeBSD would just as soon not have to maintain the issue of FreeBSD compatability, and push it off into the authors. Open Source tends to work that way: define the problem as being someone else's so you don't have to change *your* code. If this is a thing for your employer, AT&T has already done the due dilligence on FreeBSD; you could always check with your corporate lawyers on the official stance they take with respect to the various code. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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