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Re: GPL traitor !

From: Alexander Terekhov
Subject: Re: GPL traitor !
Date: Tue, 12 May 2009 16:18:44 +0200

David Kastrup wrote:
> There have been cases where secondary literature, or spinoffs or
> continuations have been prohibited on the base of copyright laws.

Only when those "secondary literature, or spinoffs or continuations"
were judged to contain protected expression such as the plot,
characters, etc. taken from the base work, silly.

"Another limitation designed to curtail the expansive definition of
derivative works is the “incorporation requirement.” Specifically, “[a]
derivative work must incorporate a protected work in some concrete or
permanent form.” Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.,
964 F.2d 965, 967 (9th Cir. 1992)(internal quotations omitted); see
also, Montgomery v. Noga, 168 F.3d 1282, 1292 (11th Cir. 1999); Alcatel
USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 788 (5th Cir. 1999). In the
realm of computer software, an important aspect of this limitation is
the basic principle that the functional elements of a work are not
protected by copyright law. Computer Assocs. Int'l v. Altai, Inc., 982
F.2d 693, 714 (2d. Cir. 1992). The District Court correctly found that
any substantial similarity between Connector and Database Manager 2.0
involves purely functional elements. Therefore, Connector does not and
cannot satisfy the incorporation requirement, because Galoob requires
the incorporation of protected expression. Accordingly, the fact that
Connector incorporates no protected expression from Database Manager 2.0
eliminates the possibility that Connector constitutes a derivative work. 

Omega will argue that our case is more analogous to Micro Star v.
Formgen, 154 F.3d 1107 (9th Cir. 1998), as opposed to Galoob. In
Formgen, defendant’s “MAP files” created new levels for plaintiff’s
video game and were found to be derivative works of the original game.
Id. at 1112. However, analogizing Connector to the MAP files in Formgen
is inappropriate. First, it is important to note that the infringed
preexisting work in Formgen was the story of plaintiff’s original game.
Id. The court found that defendants MAP files “described” new stories
that were “based upon” plaintiff’s original story, and so the MAP files
were deemed to be “sequels” that incorporated plaintiff’s preexisting
protected story. Id. at 1111-1112. As such, although the MAP files
contained no computer code from plaintiff’s preexisting work, the MAP
files incorporated copyrightable elements of plaintiff’s story and were
therefore considered derivative works. Id. at 1112.

In contrast to the video games at issue in Formgen, neither Database
Manager 2.0 nor Connector contain a copyrightable “story.” Connector
consists of literal computer code that invokes the functionality
provided by Database Manager 2.0, and in no way “describes” Database
Manager 2.0. Analogizing Database Manager 2.0 to a “story,” and
Connector to a “sequel,” is inappropriate. Connector incorporates no
copyrightable elements from Database Manager 2.0, whether literal or
non-literal. As such, Connector should not be considered a derivative
work under the Copyright Act."

"FormGen here alleges direct infringement by Micro Star, because the 
MAP files encompass new Duke stories, which are themselves derivative 
works. ... Micro Star misconstrues the protected work. The work that 
Micro Star infringes is the D/N-3D story itself--a beefy commando 
type named Duke who wanders around post-Apocalypse Los Angeles, 
shooting Pig Cops with a gun, lobbing hand grenades, searching for 
medkits and steroids, using a jetpack to leap over obstacles, blowing 
up gas tanks, avoiding radioactive slime. A copyright owner holds the 
right to create sequels, see Trust Co. Bank v. MGM/UA Entertainment 
Co., 772 F.2d 740 (11th Cir. 1985), and the stories told in the N/I 
MAP files are surely sequels, telling new (though somewhat repetitive) 
tales of Duke's fabulous adventures. A book about Duke Nukem would 
infringe for the same reason, even if it contained no pictures. "


(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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