> On 3/22/2011 7:43 AM, RJack wrote:
> > On 3/22/2011 6:51 AM, Alexander Terekhov wrote:
> >> RJack wrote:
> >>> Best Buy Inc. has just filed a 28 page (available on PACER)
> >>> Memorandum of Law in Opposition to Plaintiff's Motion for
> >>> Preliminary Injunction.
> >>> Let the the fireworks begin!
> >> SFLC's exciting reply:
> >> http://www.terekhov.de/188.pdf >
> The SFLC claimed in it's Complaint against Best Buy Inc. that:
> "On information and belief, each Defendant has distributed firmware
> embedded in electronic products or by itself that contains BusyBox or a
> derivative work of BusyBox."
> Next, in the Motion for Preliminary Injunction the SFLC claims:
> "Further, version 1.2.1 is unquestionably a derivative work of version
> 0.60.3, as version 1.2.1 was indisputably based on and is substantially
> similar to version 0.60.3, so Best Buy's distribution of version 1.2.1
> is itself a violation of Andersen's exclusive right to make and
> distribute derivative works of his registered copyright. 17 U.S.C. § 106
> So... we see that Andersen's work unquestionably involves a "derivative
> work" of the original BusyBox that was written by Bruce Perens...
> *except* when pressed on Andersen's valid copyright registration, the
> SFLC claims a few paragraphs later that:
> "Not only did Andersen write from scratch a significant portion of the
> code added between the time he left Lineo and the release of version
> 0.60.3, he is also entitled to a copyright for his direction and
> organization of BusyBox's development because the Copyright Act protects
> "a work formed by the collection and assembling of preexisting materials
> or of data that are selected, coordinated, or arranged in such a way
> that the resulting work as a whole constitutes an original work of
> authorship ... ." 17 U.S.C. §§ 101, 103; Feist Pub'lns, Inc. v. Rural
> Tel. Serv. Co., 499 U.S. 340, 362 (1991).
> SURPRISE!!! SURPRISE!!! Andersen's registered work has now magically
> morphed into a "collective work". Not only is the registered BusyBox
> work a "moving target" -- it's moving at lightspeed.
> If I were Erik Andersen I would be moving at light speed too -- Best Buy
> Inc. is about to take a large bite out of his ass.
I bet that SFLC legal beagles will suggest that what they actually mean
is that Andersen's work in 1.2.1 is a derivative collective work (a
derivative selection of material) based on his original collective work
Of course the problem is that whatever alleged Andersen's work of
whatever type and scope is not properly registered (and even not
identified in the evidence before the court to date)...
As for derivative v. collective works, SFLC legal beagles never groked
the difference in concepts:
Although the definition of ``work based on the Program'' made use of a
legal term of art, ``derivative work,'' peculiar to US copyright law, we
did not believe that this presented difficulties as significant as those
associated with the use of the term ``distribution.'' After all,
differently-labeled concepts corresponding to the derivative work are
recognized in all copyright law systems. That these counterpart concepts
might differ to some degree in scope and breadth from the US derivative
work was simply a consequence of varying national treatment of the right
of altering a copyrighted work.
Ironically, the criticism we have received regarding the use of
US-specific legal terminology in the ``work based on the Program''
definition has come not primarily from readers outside the US, but from
those within it, and particularly from members of the technology
licensing bar. They have argued that the definition of ``work based on
the Program'' effectively misstates what a derivative work is under US
law, and they have contended that it attempts, by indirect means, to
extend the scope of copyleft in ways they consider undesirable. They
have also asserted that it confounds the concepts of derivative and
collective works, two terms of art that they assume, questionably, to be
neatly disjoint under US law.
We do not agree with these views..."
They simply do not agree with US Congress:
(HOUSE REPORT NO. 94-1476)
"Between them the terms ''compilations'' and ''derivative works''
which are defined in section 101 comprehend every copyrightable
work that employs preexisting material or data of any kind. There
is necessarily some overlapping between the two, but they basically
represent different concepts. A ''compilation'' results from a
process of selecting, bringing together, organizing, and arranging
previously existing material of all kinds, regardless of whether
the individual items in the material have been or ever could have
been subject to copyright. A ''derivative work,'' on the other
hand, requires a process of recasting, transforming, or adapting
''one or more preexisting works''; the ''preexisting work'' must
come within the general subject matter of copyright set forth in
section 102, regardless of whether it is or was ever copyrighted.
The second part of the sentence that makes up section 103(a)
deals with the status of a compilation or derivative work
unlawfully employing preexisting copyrighted material. In
providing that protection does not extend to ''any part of the
work in which such material has been used unlawfully,'' the bill
prevents an infringer from benefiting, through copyright
protection, from committing an unlawful act, but preserves
protection for those parts of the work that do not employ the
preexisting work. Thus, an unauthorized translation of a novel
could not be copyrighted at all, but the owner of copyright in
an anthology of poetry could sue someone who infringed the whole
anthology, even though the infringer proves that publication of
one of the poems was unauthorized. "