[NCLUG] Breaking news! SCO is full of crap (big surprise)

[jbass at dmsd.com]

mbutcher at aleph-null.tv writes:
> Quoting jbass at dmsd.com:
> > Under the law, worst case, SCO can claim that nearly every
> > line of code derived from illegally copied/derived/tainted
> > code introduced into Linux is also code derived from their
> > designs, architecture, methodology, practice, etc.
> Not under Copyright law they can't. From
> http://www.copyright.gov/help/faq/faq-protect.html :

There is certainly room for Laywers to litigate.

In general, lots of code might might well past muster by itself
as an original work, especially if it's structure is the result
of a documented clean room design. The standard isn't quite as
forgiving once tied to other infringing code that is proven in
violation.

This concept is clearly addressed in the clean room standard, where
it's not acceptable for the dirty room to write a dense outline of
the original work as a code body and then have another team finish
the majority of the work by filling in the outline.

Simply having UNIX systems programmers code the basic system, and
then have other non-UNIX system programmers fill in the rest of the
design, ends up with the entire design tainted. It's not a remedy
at that point to have the non-UNIX team redo the UNIX systems
programmers work and attempt to claim it's not derivate. A derivative
of a derivative is still a derivative, even if substantially different.

Two dirty room redesigns back to back are not a subsitute for a
dirty room and clean room separation. As such, what SCO can claim
as tainted is much broader than might be otherwise expected, once
clearly derivative code is proven. IBM here probably lacks a clear
defense by being able to run into court and show a documented
dirty room and clean room proceedure, intermediate design, and staff.

> > There are many examples of this same theory in other areas
> > protected by copyright ... particulary fictional writings
> > where the characters, settings, names, plot, etc ... are all
> > protected from knock offs and other authors attempting to
> > capitalize on the popularity of a story line by writing
> > additional episodes and/or plots using the same characters
> > and/or settings which are clearly derivative of the popular
> > work.

> To my knowledge that is not true (and http://www.copyright.gov confirms this).
> Copyright covers expression -- not names, places, plots, ideas, etc. If I want
> to, I may copy places ideas and plots from other stories. In fact, J.K. Rowling
> won her suit against allegations of this sort of "plagarism" a few years ago.

> This is why some series creators (e.g. Lucasfilms) trademark everything.

Again, plenty of room to litigate. Trademarks are simply another
IP in addition to protections offered by copyright.

Probably one of the most common cases of this in the broad example
of "fan fiction" where followers of a particular author try to
create "derivatives" of the original authors works. Litigation has
proven that different courts and juries have very subjective
interpretation of what is derivative in fiction. Read the following
regarding Copyright and the example of fan fiction which creates
a "sequel" to a Rocky IX movie:

	http://www.chillingeffects.org/fanfic/

In particular, going back to the law:

	http://www4.law.cornell.edu/uscode/17/101.html

Copyright Section 101 clearly says:

	"A ''derivative work'' is a work based upon one or more preexisting
	works, such as a translation, musical arrangement, dramatization,
	fictionalization, motion picture version, sound recording, art
	reproduction, abridgment, condensation, or any other form in which
	a work may be recast, transformed, or adapted. A work consisting of
	editorial revisions, annotations, elaborations, or other modifications
	which, as a whole, represent an original work of authorship, is a
	''derivative work''.

Which brings us back to the first point, when is something derivative.
When can you PROVE it is, or is not, derivative?

Always room to litigate that one ... the best defense is documented proof
of dirty room and clean room separation.  The best offense is to prove
that sturcture and algorithms are identical. Being able to show copying
is a huge win. Being able to show "in place" derivatives, such as
modifications of functionality inside the UNIX framework copied without
change into Linux, is nearly as good a win since the code was originally
a derivative by documenting it's historical basis.

John