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Terekhov and Wallace are raising a legitimate question here!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. http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First "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." http://www.copyright.gov/records/about.html 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 established. "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. http://www.chicagoiplitigation.com/2008/01/articles/jurisdiction/application-for-copyright-registration-creates-subject-matter-jurisdiction/ "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 registration." Woollen Molzan et al v. Indianapolis-Marion County Public Library http://indianalawblog.com/archives/2006/07/ind_decisions_f_21.html 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. "(a) 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." http://en.wikipedia.org/wiki/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." http://www.softwarefreedom.org/news/2008/jun/10/busybox/bell-complaint.pdf 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. |
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Msg # | Subject | Author | Recs | Date Posted |
71719 | Re: Terekhov and Wallace are raising a legitimate question here! | day5done | 0 | 9/13/2008 12:03:06 PM |
71720 | Re: Terekhov and Wallace are raising a legitimate question here! | rfc3501 | 1 | 9/13/2008 12:27:04 PM |
71722 | Re: Terekhov and Wallace... a legitimate question - Weasel words | codswallet | 5 | 9/13/2008 1:07:00 PM |
71750 | Re: Terekhov and Wallace are raising a legitimate question here! | terekhov | 0 | 9/14/2008 4:31:16 AM |