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Updated analysis of derivative works.

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Tony Sebro 2014-03-18 20:48:40 -04:00 committed by Bradley M. Kuhn
parent 366854aaf1
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1
comprehensive-gpl-guide.tex
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@ -48,6 +48,7 @@ A Comprehensive Tutorial
\begin{tabbing}
Copyright \= \copyright{} 2003, 2004, 2005, 2006 \= \hspace{.2in} Free Software Foundation, Inc. \kill
Copyright \> \copyright{} 2014 \> \hspace{.2in} Bradley M. Kuhn. \\
Copyright \= \copyright{} 2014 \= \hspace{.2in} Anthony K. Sebro, Jr. \\
Copyright \> \copyright{} 2003, 2004, 2005 \> \hspace{.2in} Free Software Foundation, Inc. \\
Copyright \> \copyright{} 2008 \> \hspace{.2in} Software Freedom Law Center. \\
\end{tabbing}

46
gpl-lgpl.tex
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@ -30,6 +30,7 @@
\begin{tabbing}
Copyright \= \copyright{} 2003, 2004, 2005, 2006 \= \hspace{.2in} Free Software Foundation, Inc. \\
Copyright \= \copyright{} 2014 \= \hspace{.2in} Bradley M. Kuhn \\
Copyright \= \copyright{} 2014 \= \hspace{.2in} Anthony K. Sebro, Jr. \\
\end{tabbing}
Authors of \tutorialpartsplit{``Detailed Analysis of the GNU GPL and Related Licenses''}{this part} are: \\
@ -38,6 +39,7 @@ Free Software Foundation, Inc. \\
Bradley M. Kuhn \\
David ``Novalis'' Turner \\
Daniel B. Ravicher \\
Tony Sebro \\
John Sullivan
\vspace{.3in}
@ -1172,7 +1174,7 @@ F.2d 693 (2nd Cir. 1992); Engineering Dynamics, Inc. v. Structural
Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Kepner-Tregoe,
Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994); Gates
Rubber Co. v. Bando Chem. Indust., Ltd., 9 F.3d 823 (10th Cir. 1993);
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); 5 Bateman
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); Bateman
v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996); and, Mitek Holdings,
Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548 (11th Cir. 1996).
@ -1337,22 +1339,26 @@ identical in order to be held a derivative work of an original, while
\section{No Protection for ``Methods of Operation''}
The First Circuit expressly rejected the AFC test and, instead, takes a
much narrower view of the meaning of derivative work for software. The
First Circuit holds that ``method of operation,'' as used in \S~102(b) of
The First Circuit has taken the position that the AFC test is inapplicable
when the works in question relate to unprotectable elements set forth in
\S 102(b). Their approach results in a much narrower definition
of derivative work for software in comparison to other circuits. Specifically,
the
First Circuit holds that ``method of operation,'' as used in \S 102(b) of
the Copyright Act, refers to the means by which users operate
computers. Lotus Development Corp. v. Borland Int’l., Inc., 49 F.3d 807
(1st Cir. 1995). More specifically, the court held that a menu command
(1st Cir. 1995). In Lotus, the court held that a menu command
hierarchy for a computer program was uncopyrightable because it did not
merely explain and present the program’s functional capabilities to the
user, but also served as a method by which the program was operated and
controlled. As a result, under the First Circuit’s test, literal copying
of a menu command hierarchy, or any other ``method of operation,'' cannot
form the basis for a determination that one work is a derivative of
another. It is also reasonable to expect that the First Circuit will read
the unprotectable elements set forth in \S~102(b) broadly, and, as such,
promulgate a definition of derivative work that is much narrower than that
which exists under the AFC test.
another. As a result, courts in the First Circuit that apply the AFC test
do so only after applying a broad interpretation of \S 102(b) to filter out
unprotected elements. E.g., Real View, LLC v. 20-20 Technologies, Inc.,
683 F. Supp.2d 147, 154 (D. Mass. 2010).
\section{No Test Yet Adopted}
@ -1395,16 +1401,24 @@ the organizational charts of the two programs was not substantial enough
to support a finding of infringement because they were too simple and
obvious to contain any original expression.
Perhaps not surprisingly, there have been few cases involving a highly
In the case of Oracle America v. Google, 872 F. Supp.2d 974 (N.D. Cal. 2012),
the Northern District of California District Court examined the question of
whether the application program interfaces (APIs) associated with the Java
programming language are entitled to copyright protection. While the
court expressly declined to rule whether all APIs are free to use without
license (872 F. Supp.2nd 974 at 1002), the court held that the command
structure and taxonomy of the APIs were not protectable under copyright law.
Specifically, the court characterized the command structure and taxonomy as
both a ``method of operation'' (using an approach not dissimilar to the
First Circuit's analysis in Lotus) and a ``functional requirement for
compatability'' (using Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992) and
Sony Computer Ent. v. Connectix, 203 F.3d 596 (9th Cir. 2000) as analogies),
and thus unprotectable subject matter under \S 102(b).
Perhaps not surprisingly, there have been few other cases involving a highly
detailed software derivative work analysis. Most often, cases involve
clearer basis for decision, including frequent bad faith on the part of
the defendant or overaggressiveness on the part of the plaintiff.
However, no cases involving Free Software licensing have ever gone to
court. As Free Software becomes an ever-increasingly important part of
the economy, it remains to be seen if battle lines will be
drawn over whether particular programs infringe the rights of Free
Software developers or whether the entire community, including industry,
adopts norms avoiding such risk.
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