Re: GPL & Possible Derivative Work

[Arnoud Engelfriet <galactus@stack.nl>]

Sean Kellogg wrote:
> But it raises a unique problem from a legal test perspective.  Non-literal 
> infringement generally requires two things A) similarity, B) access.  In the 
> case of proprietary code, B is often missing...  but how does the test work 
> in a FOSS setting where everyone has access?  Is the only legal issue 
> similarity, or does the public availability alter the analysis?  

There was a US case in the 1970s where George Harrison was
convicted for copyright infringement of a song that was
on popular radio when he was writing his own song. The level
of public availability seems comparable.

Larry Rosen wrote an article discussing this case, although
he uses the example to warn against engaging in any MS Shared Source
initiative.

   Linkname: lj8
        URL: http://www.rosenlaw.com/lj8.htm

The case itself is at

   Linkname: ABKCO Music v. Harrisongs Music
        URL: http://digital-law-online.info/cases/221PQ490.htm

Arnoud

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/