Copyright, derivative works, and truly free licensing (Was: Wine license change)

[Brett Glass]

At 02:37 PM 2/10/2002, Francois Gouget wrote:

>  Then you must object to the radios broadcasting hundred of thousands
>of non-free copyrighted materials on the air. Surely with so many songs
>being broadcasted any singer or musician must be at an awfully high risk
>of being sued. 

If you write a song, and the melody is very similar to that of a song
you have heard, you very well may be sued if your song becomes popular.
Fortunately, this does not happen very often. However, the precedent of 
George Harrison shows that copyright infringement need not be conscious 
to be actionable. You can be sued if you were exposed to the original
work and there's a substantial similarity.

>> (The engineers who implemented the Phoenix BIOS, for example, had never
>> even programmed the x86 family of processors before. This was a specific
>> requirement; anyone who had written a line of 8088 assembler was rejected
>> for the job.)
>
>   I hope you realize that what you are saying is that Wine is illegal
>since most contributors have been developping programs on Windows and
>have thus all had exposure to the Windows API and headers (similar to
>having written 8088 assembly before).

Not hiring programmers who had worked with 8088 assembler before was
probably not necessary. However, it demonstrates the extreme precautions
Phoenix took to avoid lawsuits from IBM, which was litigious and
had almost infinitely deep pockets. Phoenix wanted to be able to
indemnify its customers against copyright infringement suits to 
encourage them to use its products.

In the case of WINE, exposure to documentation of the APIs is likely 
to be OK. Why? Because application programs written by programmers 
exposed to these materials are generally not considered to be 
derivative works.

However, exposure to the source code of a program whose copyright one
could be accused of infringing (in the case of WINE, this would be the
source of Windows itself) would definitely NOT be OK. This is why
one cannot read (L)GPLed code and then write commercial programs.
The FSF is likely to be a nasty litigant, and gets its legal services 
for free. It would gladly bankrupt you if it would mean wiping out a 
commercial developer.

>  Again, are you telling us that writers only read their own writings
>for fear of being sued? 

No. But the author who sued J.K. Rowling had written books which featured
creatures called "muggles" and a dark-haired boy named -- I'm not making 
this up! -- Larry Potter. If Rowling did NOT (consciously or unconsciously) 
copy this author's work, it would be an incredible coincidence.

>How many suits of these types have occurred?

Quite a few. But even more often, threats are made and people who cannot
afford to go to court are forced to back down. These cases seldom make 
the papers.

--Brett Glass