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Re: and busybox fellows 'win' DEFAULT JUDGMENT

From: Alexander Terekhov
Subject: Re: and busybox fellows 'win' DEFAULT JUDGMENT
Date: Sat, 13 Sep 2008 16:55:25 +0200

Rahul Dhesi wrote:

[... nonsense in defence of and busybox fellows ...]

Someone nicknamed "bystander1313" opined:

I love this board, I really do, but sometimes people who should know
better still let their emotions overrule reason and rationality. Some
people are so eager to pile onto T and W with the insults that they
don't even want to consider for a second whether what they're saying has
any validity. As codswallet has valiantly tried to make clear here, this
case of the SFLC vs. Bell Microproducts for copyright infringement has
some highly unusual elements which should be raising warning flags in
people's minds. 

First, neither Andersen or Landley appear to have any registered
copyrights with the U.S. Copyright Office. You can do an online search
for copyright registrations. 

"The Copyright Office Catalog contains approximately 20 million records
for works registered and documents recorded with the Copyright Office
since 1978. 

Included in one integrated database are registrations and
preregistrations for books, music, films, sound recordings, maps,
software, photographs, art, multimedia, periodicals, magazines,
journals, newspapers, etc., as well as records for assignments,
transfers, and other documents relating to copyright ownership." 

This is not some minor technicality for the SFLC. The law is quite clear
about the requirement for works to be registered before a Federal court
has any jurisdiction to even hear a copyright infringement case. As
codswallet has pointed out, this is subject matter jurisdiction that
cannot ever be waived, and is an issue that can (and in the case of the
courts, must) be raised at any time during the process by any party and
any court. 

Some courts seem to allow plaintiffs to have simply filed the paperwork
for copyright registration, while others require that the the
registrations have actually been issued, before Federal jurisdiction is

"The Court also looked to the Fifth and Eighth Circuits and held that
the registration requirement was met when plaintiff filed its copyright
registration, as opposed to when the Copyright Office acted on it. In
this case, plaintiff filed its application in May 2007 and was waiting
on registration as of the date of the opinion. The Court reasoned that
because plaintiff would also have a cause of action if the registration
was denied, there was no reason to make plaintiff wait until the
Copyright Office acted." 

Goss Int’l Ams., Inc. v. A-Am. Mach. & Assembly Co.

"The jurisdictional issue regarding the requirements of § 411(a) is not
a simple one. First, the circuits have divided between the “registration
approach,” in which a plaintiff must await the Copyright Office’s actual
registration before filing suit, and the “application approach,” in
which the plaintiff has a cause of action upon filing a copyright
application, along with the appropriate fee and deposit of material to
be protected. See La Resolana Architects, PA v. Clay Realtors Angel
Fire, 416 F.3d 1195, 1202-04 (10th Cir. 2005) (describing, in relatively
neutral terms, the arguments in support of each approach); see also 17
U.S.C. 410(d) (defining the effective date of copyright registration as
“the day on which an application, deposit, and fee ... have all been
received in the Copyright Office”). The Seventh Circuit has not yet
addressed this issue directly, although one decision suggests that this
circuit may favor the “application approach.” * * * 

Secondly, the parties in this case argue over whether § 411(a) is a
condition precedent to filing a lawsuit or a requirement for
jurisdiction. * * * 

Both issues must be set aside for another case, another day. The
Copyright Office has now apparently issued a Certificate of Registration
to Woollen Molzan, and, as noted above, a district court may look beyond
a complaint’s jurisdictional allegations and “view whatever evidence has
been submitted on the issue to determine whether in fact subject matter
jurisdiction exists.” Ezekiel, 66 F.3d at 897. As such, there is no
justiciable issue before this court on whether a cause of action exists
before the Copyright Office has registered the copyright or refused

Woollen Molzan et al v. Indianapolis-Marion County Public Library 

However, even if the authors had simply filed the copyright
applications, they should still have identified what copyrights were the
subject of their lawsuit. This is because, as codswallet also pointed
out, one of the court's duties during the proceedings is to notify the
Register of Copyrights. 

Within one month after the filing of any action under this title, the
clerks of the courts of the United States shall send written
notification to the Register of Copyrights setting forth, as far as is
shown by the papers filed in the court, the names and addresses of the
parties and the title, author, and registration number of each work
involved in the action. If any other copyrighted work is later included
in the action by amendment, answer, or other pleading, the clerk shall
also send a notification concerning it to the Register within one month
after the pleading is filed." 

If the registrations were simply pending, the plaintiffs complaint
should have said so and still identified with specificity what
copyrights they were accusing the defendant of infringing. By not doing
so, the SFLC complaint seems deficient. Remember how everyone derided
SCOX for not being specific in their claims against IBM? 

One problem, which I don't think has even been mentioned on this board,
is that it appears neither Andersen or Landley can claim to be copyright
owners of the Busybox software as a whole. They were only past
maintainers and developers of Busybox. 

"Originally written by Bruce Perens in 1996, the intent of BusyBox was
to put a complete bootable system on a single floppy that would be both
a rescue disk and an installer for the Debian distribution. It has since
then become the de facto standard for embedded Linux devices and Linux
distribution installers. Since each Linux executable requires several
kilobytes of overhead, having the BusyBox program combine over two
hundred programs together can save considerable space. 

BusyBox was maintained by Enrique Zanardi and focused on the needs of
the Debian boot-floppies installer system until early 1998, when it was
taken over by Dave Cinege for The Linux Router Project (LRP). Cinege
made several additions, created a modularized build environment, and
shifted BusyBox's focus into general high level embedded systems. As LRP
development slowed down in 1999, Erik Andersen, then of Lineo, Inc.,
took over the project and was the official maintainer between December
1999 and March 2006. During this time the Linux embedded market place
exploded in growth, and BusyBox matured greatly, expanding both its user
base and functionality. 

Denys Vlasenko is the current maintainer of BusyBox." 

Andersen and Landley can only claim to be original authors of some parts
of Busybox. They would have had to file separate registrations for the
modifications they contributed. They would not be eligible to bring
copyright infringement charges for material they did not hold the
copyright to. In the case of Busybox, there are many different modules
that have been developed over a number of years by different people. A
valid case for copyright infringement would require the plaintiff to
identify with specificity exactly what material they owned the
copyrights to was being infringed, and include copyright registrations
for those pieces. 

I have a feeling that the SFLC wants to avoid this part of making a case
for copyright infringement. Their complaint merely states that Andersen
and Landley are owners of copyrights in the program, without identifying
what parts. 

"Plaintiffs are authors and developers of the BusyBox computer program,
and the owners 
of copyrights in that computer program." 

This could be an important omission, because Busybox is modularly
structured and can be configured and built to include or exclude
different sets of features. If the infringing software was identified,
defendants could conceivably stop their alleged infringement by simply
removing the infringing material. 

This is speculation on my part, but I think the SFLC may be keeping
their infringement claims deliberately vague so that they are not forced
to file many piecemeal copyright registration claims for small parts of
Busybox, only to see potential defendants simply remove those offending
parts from their products. I still don't see how they can get away with
not specifying any copyright registrations in their complaints, however.
Any competent defence attorney should have immediately raised the issue
of subject matter jurisdiction and forced the SFLC to at least begin the
process of obtaining registrations for the parts of Busybox that
Andersen and Landley claim to own copyrights for. 

Personally, I feel that if the SFLC is not following the rules, and
they're using the GPL as a tool for a rolling extortion racket to
generate more and more copyright infringement cases, then they are not
much better than the patent trolls that most people here seem to
despise. Even if their motivation draws in part from a desire to further
a good cause, that doesn't excuse the use of objectionable methods. "The
ends justify the means" is not a philosophy I want to condone. 


(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

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