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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.
http://www.law.washington.edu/LCT/Events/FOSS/AlphaBrief.pdf
"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, defendants MAP files created new levels for plaintiffs
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 plaintiffs original game.
Id. The court found that defendants MAP files described new stories
that were based upon plaintiffs original story, and so the MAP files
were deemed to be sequels that incorporated plaintiffs preexisting
protected story. Id. at 1111-1112. As such, although the MAP files
contained no computer code from plaintiffs preexisting work, the MAP
files incorporated copyrightable elements of plaintiffs 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."
http://caselaw.lp.findlaw.com/data2/circs/9th/9656426.html
"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. "
regards,
alexander.
--
http://gng.z505.com/index.htm
(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.)
- Re: GPL traitor !, (continued)
- Re: GPL traitor !, Alan Mackenzie, 2009/05/11
- Re: GPL traitor !, Hyman Rosen, 2009/05/11
- Re: GPL traitor !, Alan Mackenzie, 2009/05/11
- Re: GPL traitor !, Hyman Rosen, 2009/05/11
- Re: GPL traitor !, David Kastrup, 2009/05/12
- Re: GPL traitor !, Hyman Rosen, 2009/05/12
- Re: GPL traitor !, David Kastrup, 2009/05/12
- Re: GPL traitor !,
Alexander Terekhov <=
- Re: GPL traitor !, Hyman Rosen, 2009/05/12
- Re: GPL traitor !, Alan Mackenzie, 2009/05/13
- Re: GPL traitor !, Alexander Terekhov, 2009/05/13
- Re: GPL traitor !, Alexander Terekhov, 2009/05/13
- Re: GPL traitor !, Hyman Rosen, 2009/05/13
- Re: GPL traitor !, Alan Mackenzie, 2009/05/13
- Re: GPL traitor !, Hyman Rosen, 2009/05/14
- Re: GPL traitor !, Hadron, 2009/05/14
- Re: GPL traitor !, JEDIDIAH, 2009/05/14
- Re: GPL traitor !, Hadron, 2009/05/14