Re: The SFLC dismissals should be coming soon

[RJack]

Hyman Rosen wrote:

> > 2) Your theory says BusyBox is [a sequence of derivative works] 
> > I'll leave it to you to identify the individual contributions and 
> > ownership claims in this 7.7 million byte "derivative work" when
> > you address the court.
>
> Every author has ownership in the pieces of work he has contributed 
> and in the arrangement of the components in the whole of BusyBox in 
> every version after he has contributed changes.

17 USC sec. 101 -- A “computer program” is a set of statements or
instructions to be used directly or indirectly in a computer in order to
bring about a certain result.

> As we know from Gaiman v. McFarlane, each author can register
> copyright in the work, and that registration represents only his own
> interest in the work,

Since each author owns his copyrights, there are literally thousands of
pieces of source code that comprise modules and their patches. Each has
it's own copyright from the respective authors. There are currently
681 C language source code modules in BusyBox. Most of these 681 code
modules have multiple patches and multiple contributions from disparate
authors. When an author contributes a patch to BusyBox he is going 
contribute to at most *one* source code module (that was probably 
patched before) that he is currently modifying.

---------------------------------------------------------------------
17 USC 101 -- 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”.

17 USC sec. 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following:... (2) to prepare derivative works based upon the copyrighted
work;
-------------------------------------------------------------------------

Obviously, If you author a derivative work you *must* be able to 
identify the owners of the "one or more preexisting works *that you 
modified*. If you modify say "basename.c (* Copyright (C) 1999-2004 by 
Erik Andersen)" you don't create a derivative work from the code owned 
by the fifty or more distinct authors of some of the other 680 source 
code modules -- you didn't even touch their work. So you didn't create a 
derivative work of "BusyBox" -- you crated a derivative work of 
"basename.c" owned by Erik Andersen. You can't simultaneously claim 
BusyBox is a single computer program for purposes of defining a 
derivative work *and* that BusyBox is a compilationspaghetti of code 
representing each of fifty disparate authors' "own interests".

> and does not affect or disparage ownership claims of the other
> authors. Registration then allows the author to sue for infringement.
A copyright owner cannot file an infringement claim over another's code
and he can't grant permission to form a derivative work for code he
doesn't own.

The binary ownership nodes of *individually owned* derivative works
comprising the 680 C modules and their patches probably runs into
*millions* of nodes. BusyBox is actually a compilation of thousands of
tiny derivatives works "spaghetti code". Using combinatorial statistics 
how many patches and modifications of original source code modules have 
occurred in the last ten years of BusyBox development?

Sincerely,
RJack :)