[linux-elitists] So, Microsoft spent that good will already. | Rick Moen please ignore.

Rick Moen rick at linuxmafia.com
Thu Jul 23 09:49:16 PDT 2009

[Gratuitous attempt at interpersonal soap opera duly disregarded;
copyright analysis follows.]

Quoting Greg Folkert (greg at gregfolkert.net):

> IMO and perhaps others feel the same way, Microsoft committed a GPLv2
> copyright violation. 

I assume you mean to assert that Microsoft Corporation's release of 
C code for a Hyper-V-layer driver intented for the Linux kernel's 
driver/staging tree, in its initial form with binary sub-components,
violated the copyrights of various previous kernel coders.  Perhaps you
would care to outline which reserved specific right under copyright law
(USA or other) Microsoft Corporation exercised without permission, in
your opinion, by submitting their patch, and which specific action on
their part did so.

Just to help you out with the legal background -- since in my experience
very close to zero percent of the people talking on the Internet about 
"copyright violation" understand even a tiny amount about copyright law
-- you might be asserting that the mere act of coding that patch
constituted creating a derivative work of the extant kernel.  This in
turn requires a showing that the contributed code in fact _was_ a
derivative work, within the meaning of that legal term of art within
copyright caselaw (e.g., in the USA, CAI v. Altai and Gates Rubber v.
Bando Chemical).  Creating derivative works is among a copyright
holder's reserved rights.

If that is what you're asserting, please detail for us the code audit
you've conducted of the Hyper-V source code, and of relevant Linux
kernel code, that supports your assertion of derivative-work status
(again, as that term is used in copyright law).

If one establishes a reasonable suspicion that someone's copyright title
has been violated through exercise of a reserved right without
permission, then that person (the infringed rights-owner) presumptively
has standing for a copyright tort action.  The next logical question
becomes:  What can the speculated plaintiff reasonably seek, and what is
he/she likely to seek?

Under US law, the infringed copyright owner's remedies differ somewhat
depending on whether he/she has bothered to register that copyright
claim with the Library of Congress either prior to infringement or
within three months of publication (of the infringed author's original
work).  Registering requires filling out some paperwork and sending it
with a $35 registration fee to the Library of Congress.  I would
speculate that some Linux kernel authors have bothered to send such
registrations, but most haven't.

Without registration:  Plaintiff is limited to seeking an injunction
against further infringement (pointless, in your hypothetical), plus
proven monetary losses ("actual damages", in legal jargon).  Which 
would in this case be bupkes.

With registration:  Plaintiff can also seek reimbursement of reasonable
attorney's fees plus statutory damages.  17 U.S.C. 504 establishes that
basic damages, decided by the court, start at $750 and go up to $30k per
work infringed -- with more if the plaintiff can also satisfy the rather
high legal burden of proving willfulness.  However, it's very common for
defendants to, on the contrary, convince the judge that the infringement
was absolutely not willful, at which point total statutory damages get
reduced to $200 per work.  For example, a defendent who immediately
ceased and corrected the problem with his/her derivative work as
Microsoft Corporation did in this case, and can reasonably claim a
screw-up, would certainly get that reduction.

So, best case, you're talking about a plaintiff who can go to court for
an essentially pointless court judgement, a $200 damage award, and maybe
$500 reimbursement to his/her lawyer.

Stranger things have happened than such a ludicrous suit being pursued, 
but I really doubt you'll find a copyright holder of relevant kernel
code who's that bloody-minded and stupid -- and has bothered to send in
copyright registration.

As a broader observation, the soap-operatic assumptions of many open
source commentators notwithstanding, discovering and dealing with
copyright violation in (e.g.) the sotware industry (in which I've worked
at various times) is pretty common and not in general a big deal.
Stuff happens.  Remedies get worked out.  Lawsuits are seldom needed.

> ...might be consider an "expo-facto" fix or late-fix.

You really have no idea what you're talking about, do you?

Rick Moen         There was an old man             Said with a laugh, "I 
rick at linuxmafia   From Peru, whose lim'ricks all   Cut them in half, the pay is 
           .com   Looked like haiku.  He           Much better for two." 
                                                        --Emmet O'Brien 

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